Cap One CCA - Capquest reply, is it valid?

[cw412]

Hi All

 

Sorry to ask again, but I know there are some great people on here.

 

I had a Cap One card and could not pay it so the debt was sold to Capquest. I ask them in Sep 07 for copies of the statements to reclaim charges. I was told that I could not reclaim anything.

 

I CCAd them a few months ago and never received a reply. Because of illness I never chased them up. Then I received a CCJ in default. I have applied for the judgment to be set aside as I did not receive the pack and would have submitted a defence.

 

I CCAd Capqeust again and received a letter from HL Legal with a copy of the agreement attached below which does not show my credit limit. Copies of my statements but no default notice.

 

My questions are

 

1. Is the CCA enforceable?

2. Can I get the default removed if they will/can not produce a Default notice?

3. Who do I reclaim the unfair charges off?

cap_one_1.pdf

cap_one_2.pdf

[cw412]

can anybody help me with this one?

[pt2537]

Hmm, very dodgy,

 

I would write back and ask for the full terms and conditions as they clearly , just look at the heading to confirm, have not supplied you with the information that you require

 

they are under an obligation to provide the information you have asked for , so tell them you need it!!

[sussex1]

I have been sent exactly the same docuemt. It looks to me the have pasted this inbetween your signatue from probaly your application form and any letter with your address.

[cw412]

Capquest have been phoning me but leaving no message, just a blank breathing one. Very bad.

 

They know that I have asked for the CCJ to be set aside when I told them last week, but they said that they would give a week and then phone again for payment.

 

Can I ask again, do I write to Cap One to ask for the charges to be taken off the total and Capquest be told, or do I write to Capquest to tell them the total that should be removed and inform the court?

 

I have asked Capquest for everything again but still no reply.

[cw412]

I have still not received the default notice or any other different paperwork for this account.

 

Now HL Legal have been to court to get an interim charging order knowing that I have applied for the judgement to be set aside.

 

I have phoned them today to tell them that they should know that I have applied to court but they are ignoring that.

 

I have written to Cap One regarding the charges with no response as yet.

 

I am waiting for the case to be submitted to my local court before I submit any more evidence.

 

Does anybody else think that the paperwork they sent me does not fulfil the requirements of the CCA 1974.

[wednesday1867]

I received the same document, i havent paid Cap One in over a year, i get a phone call every so often asking me ho wim going to pay, i just remind that i wont be paying anything til i get a proper copy of my agreement.

 

This is a response i got when i asked if it was enforcable

 

HI

I have one or two comments which may appear obvious but relate to a lot of queries I get from Capital One customers.

It seems to me that a main bone of contention here is whether a document containing a signature Box and headed Regulative by the Consumer Credit Act and a set of T and C’s can constitute an agreement.

I would say the answer is an emphatic no for the following reasons.

 

Both the 1983 and the amended regulations are quite clear about the form and content of an agreement.

Section 2 of the 1983 regs which stipulates the form say how the information in the various schedules should be presented within it.

 

It does not say the terms of the agreement should be in a document headed terms and conditions, it says within the agreement.

 

Anything else would leave the agreements wide open to abuse which it has in a lot of cases.

I think Capital one and a few of the card companies have got this wrong in the past.

 

So what you have in essence is two separate documents now the OFT says that you can not have cross referencing between these.

“2.4 Can I include cross references?

Reg 2(4) provides that the information specified may be interspersed with cross references to the terms of the agreement – see Q2.3.

It is not however permissible in the OFT’s view to include cross references to information appearing otherwise than as part of the terms of the agreement – for example, in a separate information sheet or booklet or an accompanying letter. “

So you either have an agreement which is just a signature box a heading and a few cancellation details or you have an agreement which does not contain a signature box and any details of your transaction, neither of which is acceptable as an executed agreement.

 

Regarding out of synch T and C’s since these are supposed to be copies of the agreement signed at the time of execution I cannot see how they would be acceptable, apart from the inevitable changes in interest rates there are the amendments that are added to the act every year, the difference in assumptions used to calculate the APR, the default charge regulations to name but a few, none of these would be in the original copy.

 

Best Regards

Peter

 

I wrote back to them saying something along the lines of not being able to acknowledge if they are part of the same document and why does it say on my signed document, that its an application to go and be credit scored. I might be wrong but i said it was unenforcable under Section 61 of CCA 74.

 

People know lots more than me and can only pass on my personal expierence, but hopefully someone can point out if im correct or not

[sussex1]

Also, if you look at the number on the barcodes top right and bottomn left they are different. If this was the same document surely they would be the same?

[cw412]

I spoke to Capquest yesterday and seem to have caused great upset.

 

The facts are now as follows. Still no correct CCA, looks made up and no default notice.

 

i have applied for the CCJ to be set aside for this but Capquest have now asked for a charging order. I will write to the court once it is transferred to my local one with an update.

 

I told Capquest that I felt the CCA they sent looked made up and put together. I was told that I was making very serious allegations. I told them that I felt I was being harassed. They said they know the harassment laws and always deal with customers correctly. I am sure a lot would disagree.

[IdaInFife]

are these are 2 seperate pages?

 

 

idax

[cw412]

The two pages attached are separate and clearly do not relate.

 

The document with my signature has two different bar codes and does not contain the prescribed terms.

[IdaInFife]

I think you would need to send this as a response:

 

Dear Sirs,

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

Yours faithfully

 

 

Ida x

[MARTIN3030]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158682-capquest-dont-let-them.html

[cw412]

I have now written to Capquest to tell them to stop calling me and yet they do. They called me again today to ask for the money I owe, eventhough they know I have applied for the CCJ to be set aside, and that the agreement is invalid.

 

Any ideas on what to do now? I am going to write to the court with an update on the case and my complaint about harassment.

 

I have not yet sent my final appeal to the court. What should be included and should I include a sample order or something?

[cw412]

I have been to a county court this week for a hearing on this account, following a set aside of the CCJ.

 

The judge declared the agreement valid and said it does not matter on how many sheets of paper it is. It does not have to be on one side.

 

The debt was sold to Capquest and the judge agreed that the account was not closed so no default notice was required.

 

I therefore had no defence and lost. Should I appeal to the Court of Appeal? I am on income support and cannot afford to pay. The judge has allowed me only two weeks.

[cw412]

Hi

 

Does anybody have any advice on the way forward?

[MadScouser]

Hi CW, not one of the Legal minds on the site, just going from the information ive read through.

 

A quick question regarding your post relating to judgement, presumabely Capquest have demanded full payment on the credit card? My understanding is that without a default notice the judge should not have allowed them to do this, it does not matter that the agreement(according to the judge) has not been ended, they can only claim any arrears outstanding. The full amount only becomes due after the debtor failing to pay arrears after a default notice has been issued(provided the default notice is correct).

 

Im sure there will be more legally experienced people with advice shortly

[Desperate Daniella]

That is outrageous and I am sure one of the legal people will help you here. The signature doesn't necessarily have to be on the same page as the prescribed terms but it must be within the four corners of the agreement - it's quite clear that it can't be on a separate sheet headed terms and conditions.

 

What a stupid judge. He has clearly ignored the evidence you gave him.

 

Good luck with this.

 

DD