Wednesday vs Capital One

[joneshousehold]

It means they haven't complied with your CCA request and so remain in default. Whether the agreement is enforceable or not is another matter. I have asked Peterbard to try and have a look and see if he agrees with my understanding.

[surprise]

Hi, joining in on this one. I have had the same document and my arguement with CapOne is how can they say this is an agreement when it clearly states "Please issue to me a Capital One Credit Card". When I asked for advice re this PeterBard said that "a regulated agreement cannot be sent off to be credit scored". He therefore suggested I write and say this is a pre-contractural document. I therefore wrote saying that "the two pages you have sent me cannot be linked together so I cannot verify the document you have sent as complying with S60 of the CCA Act 1974,I think a Judge would have trouble confirming this too. I have not paid them anything since January so my thoughts are if they thought they were on safe ground I would have been hauled off to Court. My case is now with the FOS as I am claiming charges back.
Shall wait see how you both get on.
Good luck

[joneshousehold]

Surprise, that is a very interesting post.
I think this is a very spooky SNAP!!! I have dropped all attempts on recovery of charges however. If the CCA request tactic fails than I can always resurrect the charges claim.

Like you say let's wait and see how each of us gets on.

My complaint to the FOS has only generated 3 holding letters so far. Meanwhile the Capital One machine rumbles on - but nowhere near a court as yet.

I thought Peter might take the view in your post. I haven't actually raised this argument as yet.

[wednesday1867]

Just had a closer look and it says " I have read the terms and conditions setting out the agreement with Capital One and if my application is accepted"

So this is an application which when they approve they class this as the agreement?

I was under the idea if you have stopped payment, you dont acknowledge the debt/acount but when you claim charges you then acknowledge the debt/account, is this wrong?

I will knock up a letter today and post it for some advice, think ill stop the charges claim and go for lack of agreement and lack of PPI agreement

[surprise]

I am going for reclaiming charges as they owe me more than I owe them. They have dug a big hole with my daughter though, they have sent her 3 application forms (definite application forms) and her charges were a lot less than she owes them, so I have told them to write it off as its unenforceable. Every now and again she gets a letter saying we are looking into your complaint, it may take awhile but we will respond again in four weeks. Give them their due, they do, but with the same letter. Obviously don't want to write it off, but at the sametime they know they can't ask her for payment.

[wednesday1867]

Surprise regarding your daughters account, cant you force the issue to get the account wiped? Thats what id be looking to do, instead of waiting for them to find something or for something to change so the debt becomes enforcable.

Im same, charges are about 1/8 of balance.

[surprise]

I do keep throwing different sections at them and telling them that this would not be enforceable in a court of law but CapOne don't go lightly. As it so happens I had a nasty thought today which I was going to set work on after dinner. As there is no agreement I have going to tell them to either zero the balance or she will put in a claim for all the interest she's paid plus payments made. Will let you know how they react.

[wednesday1867]

Originally Posted by surprise

As there is no agreement I have going to tell them to either zero the balance or she will put in a claim for all the interest she's paid plus payments made. Will let you know how they react.

Im doing that with MBNA and HSBC

MBNA No CCA, Gimme my interest :)

http://www.consumeractiongroup.co.uk...-loan-cca.html

I think ill do that letter now

[wednesday1867]

Right this is what ive come up with for starters, would appreciate some info into the reasoning why its unenforcable

I write in reply to your letter dated XX July, which enclosed a “copy” of my “agreement”. In the last few weeks I have requested a true copy of my executed agreement under the Consumer Credit Act 1974, which I will refer to as “The Act” and a full Subject Access Request under the Data Protection Act 1998, I am led to believe you have now supplied me with all the information you hold on me in relation to this account.

I have now digested what you have sent me and I find two problems that need further action on your part, first of all, I have been paying Payment Protection Insurance (PPI) now within the paperwork you have sent me, I find nothing where I have accepted PPI or signed to have it added to my account. I now class these payments were taken without my authority and require a full refund including interest, I calculate this to be £XXX.XX in premiums and £XXX.XX in interest at a rate of 34.9% the advertised interest rate as per your website, which gives a total refund of £XXX.XX. I require this refund to be paid back to me in the form of a cheque and in cheque form only within the next 14 days.

My second problem is on a much larger scale, you have recently supplied me with the “signed part of the credit agreement together with the full terms and conditions, which together form your agreement”. The terms and conditions you sent me are current terms and conditions, so I understand from your letter, to have an enforceable agreement you need a signed document and the terms and conditions at the time of signing, so straight away I believe this agreement is unenforceable, also as you have sent me the recent terms and conditions, how can I prove or a Judge believe that they are in anyway related to my account, otherwise you would of sent the correct Terms and Conditions for my account?

Also I believe the signed part of my agreement is a Pre Contractual Document and not a signed agreement as I requested.

My account with you is now in default, as you are aware you had 12 days from my original request to supply me with a true copy of my agreement and as I don’t believe what you sent me constitutes an agreement, your deadline passed on 13th July 07, while the account is in default you are unable to enforce this alleged debt which includes but is not limited to:

· You may not demand any payment on this account, nor am I obliged to offer any payment to you.

· You may not add any further interest or charges to this account.

· You may not pass this account to any third party.

· You may not register any information in respect of this account with any of the credit reference agencies.

As a gesture of goodwill, the next payment to you will be paid, but it will be the last payment I make up and until I receive a true copy of my signed agreement. If this can’t produced I will be looking into the possibility of filing a claim at Court to ask a Judge to make a declaration that the agreement is void and unenforceable. I will then again rethink the options open to me.

I look forward to receiving a true copy of my agreement.

Yours Sincerely

As i say im not good legally

[surprise]

Wednesday, this part of one I sent
a copy of the pre-contractural application/agreement.

It is evident that you have provided me with a pre-contractural application/agreement and that a second copy should have been sent to me upon approval of the account being opened, in accordance with S61 of the CCA.

Further, a prospective agreement cannot be made and then sent to be credit scored.

I deny the alleged debt and will not make any further payments and require you to submit your proposals for restitution of unlawful interest charges and penalties.

Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA in respect of this alleged debt.


I expect, in accordance with CPR, your prompt response to this formal request without further delay.

I will not enter into telephone discussion with your company and would respectfully ask that all communication is in writing only.

[wednesday1867]

Thanks Surprise, no idea what cpr is, but does this read right?

I write in reply to your letter dated XXrd July, which enclosed a “copy” of my “agreement”. In the last few weeks I have requested a true copy of my executed agreement under the Consumer Credit Act 1974, which I will refer to as “The Act” and a full Subject Access Request under the Data Protection Act 1998, I am led to believe you have now supplied me with all the information you hold on me in relation to this account.

I have now digested what you have sent me and I find two problems that need further action on your part, first of all, I have been paying Payment Protection Insurance (PPI) now within the paperwork you have sent me, I find nothing where I have accepted PPI or signed to have it added to my account. I now class these payments were taken without my authority and require a full refund including interest, I calculate this to be £XXXX in premiums and £XXXin interest at a rate of 34.9% the advertised interest rate as per your website, which gives a total refund of £XXX. I require this refund to be paid back to me in the form of a cheque and in cheque form only.

My second problem is on a much larger scale, you have recently supplied me with the “signed part of the credit agreement together with the full terms and conditions, which together form your agreement”. From my point of view It is evident that you have provided me with a pre-contractual application/agreement and that a second copy should have been sent to me upon approval of the account being opened, in accordance with S61 of the “The Act“.

Furthermore, a prospective agreement cannot be made and then sent to be credit scored.

As the timeframe under “The Act” as passed for you to supply my agreement I now deny the alleged debt and will not make any further payments and require you to submit your proposals for restitution of unlawful interest charges and penalties.

Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the “The Act” in respect of this alleged debt.

I expect, in accordance with CPR, your prompt response to this formal request without further delay.

I will not enter into telephone discussion with your company and would respectfully ask that all communication is in writing only.

Yours Sincerely

[surprise]

just a typo 5th paragraph afte "The Act" should be has, not as.

You will probably get a letter back saying that they had complied, etc, but you just need to keep strong and stick to your guns.

I am confident that if they were in the right they would have either passed the debt on or took me to Court. Incidentally they did issue a default which they later withdrew after I told them that they couldn't enforce the agreement as they did not have a true signed copy. So what does that tell you?

good luck

[wednesday1867]

Thanks Suprise and Jones, ill give it a whirl and see what happens.

The end result ill be looking for is pushing them towards court to zero the balance, dont want the posibility of having to pay it in the future hanging over my head.

So as long as they say this is ok, i will take them to court to get a ruling on it

Is their legal office the Executive Office?

[surprise]

Executive Office

[wednesday1867]

Thanks again surprise

At this rate Payplan will bve sending my payments back Egg and Mint havent sent anything yet and their 12 days were up on 13th July, ill give them a few more days............ well i might do, before giving them a nudge

[joneshousehold]

Surprise
I haven't actually said much about the pre-contractual argument to Capital One. I like your argument a lot and I have kept it to roll out later if that's OK.

I am impressed that you have had a default notice withdrawn. C1 won't accept anything from me at all. You must have a way with words!