Andy v CapOne

[ukaviator]

Andy

 

I have received your email and looked over the agreement. From what i can see the agreement looks like it is Enforcable. This looks like a new agreement though, how long ago did you take this out?

 

The charges are stated as being £12...

 

You have definately not asked for PPI as the box has'nt been ticked.

[andyford2000]

so if its an enforceable agreement, where have i signed it. the only thing i ever signed was the application form, and i thought they werent enforecable

 

i took the credit card out in the middle of 2002 ish

 

so confusing

[banker_rhymes_with]

Hello andyford2000!

 

...the only thing i ever signed was the application form, and i thought they werent enforecable

 

An Application Form is potentially Enforceable, but it would need at least your Signature and the Prescribed Terms.

 

Beware that CapitalOne have a habit of mocking up Application Forms by adding Terms to the back of the Photocopy.

 

It may look Enforceable at first glance, but the question then arises, do they have the Original?

 

Look at what they have sent, and see if there are significant differences between the sides, i.e. does one have black fold marks where you folded it into an Envelope before sending it back to them, whereas the other Page is Virgin White with no black fold lines...that sort of thing.

 

2002 is a while back now, so they would need this to be a Signed Application Form/Agreement and can't say it was done on-line etc.

 

Hope this helps.

 

Cheers,

BRW

[ukaviator]

Ah i see now Andy, i thought you had Tipexed it out. It has to be signed..

 

The terms and conditions look like the latest ones, as the charges are stated as £12..

 

They should have sent you the terms and conditions from the time you opened the account.

[andyford2000]

they only thing i ever signed was the piece of paper that said application form, so i guess its not enforceable, so i could go for both ppi and charges nowplease confirm this is correct

[havinastella]

they only thing i ever signed was the piece of paper that said application form, so i guess its not enforceable, so i could go for both ppi and charges nowplease confirm this is correct

 

Yes correct

 

You seem to be making hard work out of one of the easy banks :p

 

 

JOgs

[andyford2000]

i know, just so confused

[andyford2000]

would i be right in thinking in that that although i am supposed to have signed a credit agreement, doesnt it have to be signed by both myself and captial one.

 

cannot work out how to to post a scan image into this thread

[Mr lex]

Hi Andy,

 

Save your scan as a 'word' doc. (Make's it easy to edit your own details out)

 

Upload to something like 'Potobucket' Image hosting, free photo sharing & video sharing at Photobucket

 

Click on the 'insert imade' button and away you go !!

 

Lex

[andyford2000]

cheers

 

right when i asked for the CCA request last year, this is what i got in return. 3 pieces of paper in total

 

 

 

 

 

 

now there is this page too, but it if you look closely you cannot see the fold marks on it like the one above. I have read somewhere that capital one do this quite a lot, trying to make the document look like they were back to back agreements. I would welcome peoples thoughts. when i pressed them to see an enforecable agreement at an earlier date they send me last scanned one before suddenly finding this one. Not realy sure what this means, think they may be trying to pull some kind of fast one., will attach that one too.

 

 

this

Edited October 12, 2008 by andyford2000

[andyford2000]

bump

[banker_rhymes_with]

Hello AF2000!

 

Not realy sure what this means, think they may be trying to pull some kind of fast one...

 

That may well be an accurate observation.

 

They want you to think they have a document with your Signature and the Prescribed Terms...hence the appearance of this new 2nd Page (with no Fold Marks that match the 1st Page...crease proof paper perhaps?).

 

How convenient for them.

 

Cheers,

BRW

[andyford2000]

So, Should I Now Proceed And File The Claim With County Court, The Only Date I Can Do This Is Now Tuesday As I Dont Have A Day Between Now And Then

[andyford2000]

bump

[banker_rhymes_with]

Hello AF2000!

 

I regret I can't advise on Court, as do not yet have the direct experience. But try to get hold of one of the Site Team if you can for guidance.

 

Cheers,

BRW

[Audreygreeneyes]

Hi Andy if it is of any help I have just completed a case for my mother against cap 1...... I claimed the 15.9 they charged her..... initially they refused. but as the hearing was tomorrow and I stood my ground they paid the remainder into her account on friday....

 

Funnily enough when I aske dfor the cca they ignored it for 3 months and only when i mentiond the fsa did they send... a copy of the application form.....lol

 

they will acknowledge your claim when you submit the court action..... submit the usual basic defence....then go for the additional 14 dyas..... making it 28 in total.....

 

then you will get a court date....... you may also get and AQ request which costs £35 ( it is reclaimable) they will play brinkmanship with you..... STAND FIRM

 

the very worst that can happen is you only get the basic 8% and if you are lucky you willget the 15.9 a difference of a few hundered pounds......

 

Now if they cant produce the original am not sure here but someone smarter than me will know you might even be able to reclaim every payment...

 

hope some of this helps:)

[andyford2000]

thanks, need to try and file this on wednesday at the latest

[andyford2000]

right, for all those who have been following this thread. I could really do with a final answer on this now, are my POC 100% correct for this

 

I have received this today, and will need to file my action N1 on tuesday at the latest now.

 

comments and observations appreciated please

 

[andyford2000]

bump bump bump

[andyford2000]

Omg Bump, No Comments Arhhhhhhhhhhhhh

[havinastella]

Hi again Andy,

 

As one of the Mods stated in an earlier post, your POC looks great, the red bit is fine.

 

On a side note, you could save yourself £85 and let Bryan Carter issue the court papers

 

You then defend the whole of the claim using 'offset', so you don't pay a penny and still win.

This is just a very small point but it will save you a bit of money upfront on court fees.

 

If you make a counter claim you also have to pay a court fee.

 

However, if you say that, as part of your defence, you have the right of equitable set-off of these charges against the amount claimed then you are counter-claiming the charges but you don't need to pay the fee

 

If anybody is interested here is a bot about the different types of set-off:-

 

The 1958 Court of Appeal decision in the case of Hanak -v- Green is regarded as one of the key decisions defining the modern law of set-off. It may now be said there are four forms in which a set-off can arise: 1) Mutual liquidated debts (sometimes called legal set-off). A cross claim can be set-off as a defence if the amount of the debt is known or can be readily and without difficulty ascertained. 2) Equitable set-off (sometimes called transaction set-off). The test as to whether a cross claim can be relied upon as an equitable set-off is whether it is so closely connected with the claim that it would be manifestly unjust to allow the claim without taking into account the cross claim. 3) Contractual set-off. The contract may dictate certain procedures that must be observed to preserve the right to apply a set-off 4) Statutory set-off. For example, under rule 4.90 of the Insolvency Rules 1986 an employer can set-off any claims it can prove against monies owing to an insolvent contractor. (thanks Nicklea)

 

Hope this helps

 

JOgs

[andyford2000]

lost me on this one Byran Carter ??????????

[havinastella]

lost me on this one Byran Carter ??????????

 

Errr the letter from the Solicitor you posted?

[andyford2000]

right, please could someone look over my N1 and tell if its complete or if I need to add or remove anything from it

 

I am hoping to file this tomorrow with the court

 

 

 

[andyford2000]

well thats it now,

 

just back from the Court and papers filed, cannot believe how long this has taken me, just hope i havent made any mistakes in POC.

 

watch this space i guess,

 

what does puzzle me is, what if there proceed and file against me today too