Pinky ~V~ Capital One

**AuntiePink** · 28th November 2007 22:32

The bullet has been bitten! Today I finally sent a CCA letter to Capital One icon

complete with postal order. My statements have the date the account was opened on them as standard but that's not to say they've got a proper agreement so, as of today...

the clock is ticking...

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**steven4064** · 29th November 2007 15:54

Welcome auntie

keep us informed - there is always someone here to help

**AuntiePink** · 11th December 2007 13:26

Received these from cap one icon

this morning. Can someone that knows what they're looking for cast an eye over for me please? The T&Cs are the current ones but the two pages of 'agreement' are photocopies so I think I may be on a hiding to nothing here

Apoogies if they're either too small to read or completely mahooosive!

**steven4064** · 11th December 2007 14:52

Looks like a properly executed agreement to me

**AuntiePink** · 11th December 2007 15:40

Thanks, Steven, I thought as much. I guess the next step is to SAR icon

and reclaim charges then? Every little helps, as they say!

**mkandy** · 11th December 2007 15:43

Deffo have to go the way that i went, CCA route wont work!

**ruralgirl** · 11th December 2007 16:45

The first part (with your signature icon

) is an application form. Are those T & C from 2003 when you opened the account or are they the current ones? Their letter says they are the current ones, surely they have to be the ones from 2003 to make it a valid CCA.

**AuntiePink** · 11th December 2007 18:30

I think they're current, they're not photocopied like the agreement anyway.

**steven4064** · 11th December 2007 19:25

Why do you need to send a SAR icon

if you already know what the charges are?

**Curlyben** · 11th December 2007 22:31

Sorry to say Steven, but that ISN'T an enforceable agreement at all, but a standard mailer application form with T&C that are unrelated. This type of "agreement" is not allowed under SI 1983/1553.
Basically pre May 2005 agreements MUST include the prescribed terms within the body of the signature icon

document and NOT be a separate T&C document.

**pt2537** · 11th December 2007 23:03

its gotta be said that those T&Cs could be from any document,

the bit that stands out to me is the "these terms are taken from.......of the terms and conditions icon

you sign with us" well clearly these must be the terms you sign if they are part of the agreement so that bit under the Regulated by the consumer Credit Act really blows em out of the water, unless tehy can prove that they are on the back of the part you signed

**ukaviator** · 11th December 2007 23:18

On their website, they tell you of the procedure they use to issue you with a card and an agreement.

On their website under FAQ's it gives you the procedure once you have filled in the form. It says :

Do I need to sign a credit agreement?

Yes. After you've been accepted, we will send out two copies of the credit agreement to you. You need to read and sign the one with the yellow band at the bottom of the page, and send it back to us. The second is for you to keep.

On your paperwork above, there are no terms. How much credit you had been given, what the APR is etc. You have an unenforcable agreement and they know it. Hence the waffle in that letter.

**steven4064** · 12th December 2007 01:19

Thanks ben, pt and uk for the correction.

Perhaps you could take this opprotunity to elucidate. I have seen other agreements on this site that have been deemed properly executed and the only T&Cs on the page with the signature icon

relate to the DPA.

I assumed what was posted above were two side of one document - presumably this would not do from what you have said.

Are you saying that an enforceable agreement (pre May 2005 anyway) must have all the T&Cs on the same page as the signature? What is the difference post May 2005?

**pt2537** · 12th December 2007 10:30

Originally Posted by steven4064

Thanks ben, pt and uk for the correction.

Perhaps you could take this opprotunity to elucidate. I have seen other agreements on this site that have been deemed properly executed and the only T&Cs on the page with the signature icon

relate to the Data Protection Act.

I assumed what was posted above were two side of one document - presumably this would not do from what you have said.

Are you saying that an enforceable agreement (pre May 2005 anyway) must have all the T&Cs on the same page as the signature? What is the difference post May 2005?

Hi Steven,

aint the law fun

the "may" thing is to do with the agreeements amendments which amended the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

the biggest issue i have with that document is the fact that the regs require the prescribed terms to be within the agreement not in a separate document entitled T&Cs, now if its a 2 page document the problem you sometimes come up against is if the document is linked I.E it looks as if the two pages are part of the same document

here however,it would be very easy to argue the T&Cs do not appear to be part of the same document. the burden is upon the creditor to prove the document is valid and compliant the question i would ask is why would the document i am purported to have signed have such a reference under neath it unless it was not part of the signature doc

regards
paul

**AuntiePink** · 12th December 2007 11:05

Ooerr! If it's any help to my learned caggers, the terms and conditions icon

were an actual copy on proper foolscap length paper and current so I didn't bother scanning them in (but can do by all means).

The two pages above were photocopies. The 'Credit Agreement' has 2 barcodes/serial numbers on but the 'Credit Agreement Regulated by...' has none.

**steven4064** · 12th December 2007 11:09

Originally Posted by pt2537

here however,it would be very easy to argue the T&Cs do not appear to be part of the same document. the burden is upon the creditor to prove the document is valid and compliant the question i would ask is why would the document i am purported to have signed have such a reference under neath it unless it was not part of the signature icon

doc

In this case (as I assumed) the T&Cs could be on the back of the sheet with the signature - ie part of the same document. Because it's a photocopy, you can't tell. However, they only have to demonstrate that a properly executed document exists when they get to court in which case they can just produce the original, surely.

**pt2537** · 12th December 2007 11:37

another thing which springs to mind..................... wheres the cancellation rights?

**AuntiePink** · 12th December 2007 11:41

Originally Posted by steven4064

Why do you need to send a S.A.R - (Subject access request icon

) if you already know what the charges are?

I don't know how much the charges come to yet, I was doing the CCA as a first step.

**pt2537** · 12th December 2007 11:51

failure to provide cancellation rights would render this unenforcable under s64 CCA 1974

64. Duty to give notice of cancellation rights

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—
(a)
must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b)
except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either— (a)
it is sent by post to the debtor or hirer before the credit-token is given to him, or

(b)
it is sent by post to him together with the credit-token.

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.
(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if— (a)
on an application by that person to the Director, the Director has determined that, having regard to—
(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and
(ii) the information provided to debtors or hirers before such agreements are made,
the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

(b)
any conditions imposed by the Director in making the determination are complied with.

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

**AuntiePink** · 12th December 2007 12:31

There is a right to cancel box on the terms and conditions icon

they sent but of course, they're the current terms, nothing to do with what I signed in the first place.

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