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Forgottenone/Capone CCA/Default


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Guest forgottenone

Putting this here so others with problems with Capital One can also view it. It's got me worried now, really.

 

Capital One has not supplied my original CCA, time limit on the first 12 + 2 is up middle of this week. Suddenly, instead of what I ask them for, they send me these new T & C's. Card was applied for over 8 years ago. Interestingly, and for the first time ever, down the side panel of the statement they sent me today is printed:

We are making some changes to your credit card agreement, please refer to the enclosed leaflet. The paragraphs applicable to your agreement which you need to read along with the rest of this notice are A, C, F, G, H, I, O, Q.

 

Firstly, I do not possess a copy of my original credit agreement so I cannot refer back to it and, from reading others posts here, Capital One didn't have them at the time I applied for my card. Or didn't have the T & Cs more current CCA's have written into them. I may be wrong but that's how I read it. So, looks like they are now trying to link these changes to that card applied for over 8 years ago. Can they do this??

Two leaflets were enclosed, one is a very drawn out 'notification of changes to your terms & conditions' and ,important information about changes to your credit card agreement'. Now, this seems to be a response to my CCA request as I have never seen this on my statements before. These changes take place from 7 July.

 

c1.jpg

c2.jpg

c3.jpg

c4.jpg

 

Seems to me Capital One are doing this, will delay supplying my original CCA until AFTER 7 July, then apply the new terms and conditions relating to the card I took out with them over 8 years ago linking them with that card. Then try and enforce it using the new terms and conditions. I don't even see how this can be legal! If that's what they are intending. If nothing else is grossly unfair if they are applying these terms/conditions in this manner. Unfair practice possibly? I don't know the ins and outs but this has got me really frightened now. To me, it looks strongly like they are going to try and pull this. If so, what can I or others do? New conditions for an 8 year old card.

 

Either way, even if they make these changes, they are NOT nor would have been the terms and conditions that would have appeared on my original credit agreement when I applied. How can they do this now?? Would I be correct in assuming here they are trying to enforce these conditions on that card? A whole 8 years after applying. It would be completely impossible for me to see these at the time of applying if nothing else. They clearly didn't exist.

 

Any advice?? As I said I have requested my original CCA, this seems to be their reply.

 

It's got me quite scared. As I am having terrible trouble with them right now, they keep adding late payment charges, default payments. Illegal requests to see my bank statements twice now claiming they need to see 'proof of income'. I didn't take any form of PPI out with them, if they claim I have then they are not telling the truth because I haven't! And that's really the only legitimate time - if at all - I can see them asking for such statements. But still they ask, still I ram it back at them they aren't allowed to ask me for them.

 

Has anyone else had one of these?

 

In the even they do not provide me with my true/origial copy of my CCA do I still continue as normal, eg wait out the 30 days, then they are in default? It seems very unfair, underhanded far as I am concerned TBH, they are now issuing these new T & C's. Or should I send them the 'reminder' letter that they have not fulfilled my request?

 

Yep, reading and what I receive back from them in the way of 'waffle mail' not answering directly my correspondence, just more of the same it would seem Capital One doesn't want to play fairly nor abide with some of the laws of the UK. One example being, of course, their requests to see my bank or financial information even though they know they shouldn't be asking for it. Fortunately, it's what led me here to CAG by finding someone with the same problem with Capital One then finding out what they could and couldn't ask me for. But bend the rules, thinking I don't know or might not find out regardless.

 

I note they say on the front of one leaflet to contact them by phoning if you have any further questions or need more help with the changes. Or more precisely, 'we would like to update your details with us'. Don't think so!

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Guest forgottenone

My apologies, the print''s miniscule anyway *as usual with these things* on the main leaflet ... partially blurred.

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You require a copy of the document that you signed, this is what they will be attempting to enforce, without this they have nothing, they can send you whatever they like and make whatever claims they wish, but without the original executed agreement, they haven't got a leg to stand on

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Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account. Also it would seem that you are potentially committing fraud by passing off a document which you are purporting to be the 'terms and conditions' at the time of issue. !!!

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

You may be interested to see this from the Office Of Fair Trading's website.

 

For your information, the general effects of sections 77-79 requires the creditor/owner

(in the case of a hire agreement) under an agreement for (fixed-sum credit, running

account credit and hire agreement) to provide the debtor/hirer with a copy of the executed

agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days

(not including the date of receipt of the request) he may not enforce the agreement at all.

This prevents enforcement with or without a court order. If a default lasts for a month

(for example a calendar month) it constitutes an offence. We understand your concerns in

this matter but please do remember however that once the creditor/owner complies with

the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement

and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the

agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor

(the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points,

but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have

difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody

would know what was in the original. When the trader comes to enforce the debt in court, he needs

to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot

otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to

further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or

provide details as appropriate when a debt is queried or disputed

 

 

 

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

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

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

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Guest forgottenone

Thanks, I could hug you both. So, just to reassure just myself here:

You require a copy of the document that you signed, this is what they will be attempting to enforce, without this they have nothing, they can send you whatever they like and make whatever claims they wish, but without the original executed agreement, they haven't got a leg to stand on

 

Essentially, these new T & C's are wasting paper? I'm slowly getting more acquainted with everything, what my rights are ... just another scare tactic?

 

Thanks 42man, will get that off soon as the time limit is up. I knew Capital One wouldn't supply or, if they do, will be what others have received on CAG.

 

Feel a little happier now. Expect Capital One's 'psych' was to have me open the envelope, see these leaflets, what they printed on the statement and go 'OMG!'. Okay, I did. But then came here for further advice. Which is, as we all know, they don't want us to get.

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Hi Forgottenone :)

I've had a similar experience, here's my thread:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/145822-capital-one-april-2007-a.html#post1536884

Basically, last year while we were on a DMP with Payplan, Capital One sent me this 'example of new agreement', which they said replaced the old one. It puzzled me at the time, as I'd had the Card for years..

When I requested my CCA, I got the new format, as per the 'example'.

So, it seems to me that Capital One tried to address the issue of unenforceable credit agreements by making up new ones!

I feel just the same as you.

We will not be intimidated.

'The pen is mightier than the sword'.

Petition to Outlaw Debt Sale and Purchase

- can't read/post much as eye strain's v.bad.

VIVA CAG!!! :)

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Guest forgottenone

Hey, thanks. Will read. Tell you what else Capital One started doing lately? Which they never did before. On the back of at least one letter, they have now started putting about where to go to get financial help with debt. CAB, Payplan, CCCS. But, yes, make it up as they go along.

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I like the "re-cycle this leaflet after you have finished with it"

 

Don't they want you to keep the leaflet? Isn't it an important document?

 

Why didn't it come with a hole pre-punched in the corner for hanging it up?

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Guest forgottenone

Which leads me to the 'overlimit default sum' and 'late or failure to pay default sum' which has now inflated what was merely a few pounds over to almost £200 over the limit!! Is there anything I can do to stop this? Naturally, they are placing me and more into debt as a result, of course.

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Guest forgottenone

All I can say is when they eventually relocate themselves overseas entirely from the UK ... It's already a nightmare talking to their overseas call centres as it is. I have a theory about it all. Bare with me. I think they do all this relocating to make it hellishly difficult for you to sort anything out. May as well put a barking dog at the end of the phone, the sense or nonsense you get out of them. Seems to be the way everything is going in the UK. Certainly, if you weren't suffering with stress before you phoned them up, you will be afterwards.

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Guest forgottenone

Sosumi, read your fun/games with Capone. If you have any tips or pointers how I could reply, fling things back at them ... if I need to, still sending 42man's letter anyway very soon. I want to give them back some of the pain they've caused me over this, not to mention health. I just get stuck with my letter writing.

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Sosumi, read your fun/games with Capone. If you have any tips or pointers how I could reply, fling things back at them ... if I need to, still sending 42man's letter anyway very soon. I want to give them back some of the pain they've caused me over this, not to mention health. I just get stuck with my letter writing.

I'm still thinking about what to do myself - but 42Man's excellent response tops my list at the mo :)

Curiously, they've stopped putting their address on my credit file from Experian - just their telephone number. Still wondering why.

If they contact me again I'll be asking for some explanations, that's for sure. I have no feeling for them now - they're making loads of people redundant round here, and 'outsourcing' to India.

We will not be intimidated.

'The pen is mightier than the sword'.

Petition to Outlaw Debt Sale and Purchase

- can't read/post much as eye strain's v.bad.

VIVA CAG!!! :)

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Guest forgottenone

I'm just flabergasted they even consider they can get away with doing it TBH? More than anything. That letter's definitely going off to them now! Reason I have such a hard time replying to any creditor is because the letters they send you make you feel so confused. Purely because they don't answer anything so leaves you thinking 'eh??' How about we join forces, Sosumi?

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Guest forgottenone

OK, hopeless at maths. I sent the request 15 May recorded delivery. So, allowing for the 12 + 2 working days should be up end of this week? If I've done my sums correctly. Nothing has appeared in the post yet. Don't expect it will TBH.

 

Just making sure cos I am itching to send that letter 42Man gave but want to make sure I do it soon as the first time limit expires. Always get mixed up with things like this. Have to start thinking in 5 day weeks not 7.:o

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after the 12+2 working days has passed, send them nothing, don't phone them, or write to remind them of their legal obligations. even if the non-fulfillment of your request is caused by a mistake, or an admin error on their part, if the cca doesn't arrive, they will have placed your request in default

 

30 calendar days after they have defaulted on your request, any further demands from them after this point should start the complaining.

 

Just think of it as a game of chess, you've made your move and now it's their turn, you wouldn't point out to an opponent when they're about to do something stupid, so don't tell these "people" anything more than you have to

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Guest forgottenone

Thanks for replying. Chess. Yep, sure is. :D Used to play that at primary school a lot. Now it's just on a much bigger and grander scale. ;)

 

I never follow my own advice. lol

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  • 3 weeks later...
Guest forgottenone

CCA request sent 15 May. No reply. Except for a copy of their new terms and conditions enclosed with my last statement. Should I be worried I've had no reply at all? Been reading an awful lot about Capital One on CAG, all of it not good; what they get up to. Need not say they've tried to get me to send them copies of bank statements on 2 occasions, and other financial particulars; one would have had my NI number on it ... no flipping way am I giving them that info! ... to prove my income. No way. And they've been informed of that, and their right's where that is concerned. This last request from them also came whilst the account was in dispute re CCA.

 

My card was taken out with them 2000 ... and I've read the chances of a CCA existing are slim. Remote. I have made formal approaches to them, including offers of token payments; explained my financial circumstances to them, that in no way can I physically afford monthly payments any longer; definitely cannot afford them now they've very nicely added late payment fees taken the amount a great DEAL over my limit; oh, of course, then adding OVER THE LIMIT fees as a result! Nice! Thank you Capone! Naturally, all gone totally ignored. No surprise there, then. Hence why I've gone the CCA route now.

 

Been posting in the general and debt collection industry section for a while, didn't really know about this subforum so my first post here.

 

Just getting a little scared Capital One haven't responded with anything. Yet, anyway. They will be over the 30 days fairly soon. Though, it has been suggested to me that they will wait until July, then supply something and then try to enforce it using the new T/Cs coincidentally just happening to apply from July. Even though they aren't the ones I agreed on nor have access to them now after so long.

 

TBH, given it was 2000 ... this is likely the reason. But has anyone else here experienced this with Capital One? If so, do I need to do anything next eg send a reminder letter?

 

I know I shouldn't be, not with being able to use and read CAG but it's beginning to frighten me slightly nothing has been produced by them. Is this just another tactice of theirs? Do they assume that issuing me with a copy of their new terms and conditions effective from July ... constitutes in some way they have obligated my request for a copy of the true agreement?

 

Reason it's bothering me is because of reading but also the utterly ridiculous twaddle they've been sending me in the form of threatograms. Mindbending isn't the word for them. And because they do not seem to obey any laws of the land. UK ones, that is. And reading other users trouble with Capital One.

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Are there lots of charges on the account? If so, it might be quicker to claim the charges back, which would then reduce your debt to them, thus reducing the outstanding balance which would probably leave you in a better position to make payments. Any charges over 6 years old would be statute barred, but you'd be okay with anything from 2002. They usualy pay up charges, purchase interest and stat 8% once you have filed at court, so you could find it only takes about 6-8 weeks to get the charges refunded.

 

You can either go the CCa route or charges route, but not both.

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Guest forgottenone

Unfortunnately, it's out of the question filing anything with a court over charges. I am on IB. Literally don't have the money. I don't know what to do now. Things are really bad. Bankruptcy is not an option, either. That would automatically mean I forfeit a place to live. Instantly. And wreck any future employment prospects at the same time. So many negative things. And, really, I would not cope with just the prospect of going bankrupt. There's only so many times you can be kicked in the teeth, even when it's not your own fault. I am not a very lucky person.

 

I have received a default notice from them today ... even though they are in default themselves with not supplying any CCA. I will put that in a different thread.

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Guest forgottenone

Received a dodgy looking 'Notice of Default' today from Capone. As below. Capital One are now well outside the initial 12 + 2 days having CCAd them mid May and the 30 calendar days are almost up. During that time they have sent a few correspondence, ahem, 'threatograms' even though the account is now in dispute with them. I have ignored those as a result, being template letters. However, today I received the below:

 

capitalone.jpg

 

and on the reverse:

 

capitalone1.jpg

 

Any expert advice on this being a legally executed notice appreciated?

Think I know the answer, though, reading other Capone threads.

 

Several things about this letter:

 

1) They claim I have broken my agreement by going over my limit. Ahem, no I haven't, THEY'VE broken it by adding charges taking my account OVER the limit!

 

2) 'As described in clause 4 of the agreement'. I have no such clauses to refer to as Capone has not sent me a CCA as requested, enclosing postal order. What they have sent me, however, is a new set of terms and conditions ... which rather ironically, begins from July and as you will see in the letter, they are giving me 28 days to pay this? Why 28 days - oh, of course! So they can try and enforce their new terms and conditions! Is this playing fair?? Card was taken out 2000, been paying minimum payments since, or several times cleared the balance outright ... only recently got into difficulties.

 

3) As usual, Capital One ignores everything I send them. Except the phone calls have now stopped; so, at least, I know they ARE reading correspondence. But picking and choosing which they consider need to be replied to. Of course.

 

4) The letter makes absolutely no sense ... and is on a level with the other correspondence I've received from them thus far. For example, it says Notice of Default served ... yet are then saying I can still pay the overdue amount within 28 days or then I will be issued with a Statement of Default? So, let's get this straight, to avoid any confusion - is this a Default Notice or not? And what IS a Statement of Default? Does one even exist? Or is it something Capone has made up to frighten me further than I am already?

 

5) Capital One was notified immediately of my financial circumstances, made formal approaches to offer token payments. Ignored. Received 2 letters - one whilst account was in dispute with CCA request - demanding I send them bank statements, other financial particulars including, on the second letter, proof of my benefit. Fortunately, I knew this was wrong when on the phone the final time I spoke to them and informed them of this. I was also strongly advised not to complete one of their misleading financial statements they sent me as it asks for information not required under BBA/MAT requirements; Capone would be looking for ANY income for example surplus. There is also no PPI on this account and that is the ONLY circumstance I could reasonably see them asking for such information. Either way, they aren not getting access to my bank statements NOR my benefit claim details. We all know once they do they'll start taking money from it without my permission. Their words were that 'blah de blah doesn't know what they are talking about' yeah, right! Didn't fall for it, learned from CAG that they are now allowed to ask me to send them that information and sent letter accordingly informing them of that. Whilst in CCA request, received second letter asking for same info. Ignored that, as already notified them they were requesting that information illegally.

 

6) I am very concerned with the back of the letter where they claim or are implying any future employment I may seek will be blacklisted because an employer may carry out a credit check? Is this actually lawful and, from my point of view, is using psychological harassment by implying I will find it hard to find future employment as a result of this default. Capital One seem to be taking it upon themselves to imply I will never work again if I default. Is this actually legal???

 

7) Laughingly, they now point me towards financial support or advice. To come to a payment plan with them. Again refer to the 2 letters asking for financial information they should NOT be asking for, yet do so anyway in order for them to make a 'payment arrangement'. Their terms, of course and above what I can physically afford.

 

8) Finally, they are saying I should get immediate help from a solicitor or trading standards - yep, tried them, turned out I knew more than them and they are PAID to know this stuff! ; or so you'd think! and were not in the slightest bit sympathetic, nor helpful - or CAB.

 

Either way I have a paper trail between myself and Capital One which proofs 100% I tried to instruct them of my financial situation and they just ignore it. Want things their way or no way.

 

To reiterate, Capone has callously ignored any correspondence I send them, except for the telephone harassment letter as calls have stopped, including any offer of token payments. They have not supplied a CCA - clearly, one doesn't exist hence their scare tactics right now and delaying tactics of '28 days to pay' ... giving them time to allow their new terms and conditions *which they tucked in with my last statement; so I know damn well they've seen my CCA request or why bother putting it in there?* re 'clause 4'.

 

Capital One is now in 12 + 2 default but have issued this 'default notice'. Is there anything I should be doing next? Should I remind them they've not complied with my request? I was under the impression that whilst an account is in dispute any creditor could not issue any such notices?

 

Expert advice is much appreciated. I realize this is likely a template/computer generated latter but it is STILL whilst account is in dispute.

 

Have learned from CAG what games Capital One plays ie makes up their own regulations, laws and doesn't play fair when you are in financial difficulties.

 

What is now frightening me is I will be forced into the hands of one of their strong arm solicitors I have read about on CAG. I cannot pay them what they are asking regardless. What else can I do?

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You need to keep everything all on one thread, that way its easier for people to get the whole picture and give relevant advice.

 

With regard to you being on IB, I presume this is Incapacity Benefit? There are exemptions from court filing fees, I'll see if I can find the link. But basically you may not have to pay the filing fee

 

Here it is The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

The normal fees for filing are here The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

I know that link says its not available but when you actually click on it it does work. I'm just not very good at links!!

To get a default removed you would probably have to put in a court claim against them anyway, they won't just do it because you ask them nicely (unfortunately).

 

When I filed my claim against Crap One the fee was £85, I had to save up for 2 months to get it because i didn't qualify for the fees exemption. It doesn't matter how long it takes you to get the money, there isn't a time limit on putting the claim in, as long as you send the SAR, Prelim, LBA and follow the procedures.

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