Capone/cabot v OH (disputed Acc)

[underdog13]

Just had a look at your 'agreement' on page one - it refers to the T&Cs and you agreeing to be bound by them, blah,blah; which would suggest to me that any prescribed terms would be in a separate document - which is not allowed:D

 

Secondly, it says please see overleaf how your info will be used; this would seem to be a reference to the data act. Nowhere does it mention please see overleaf for your T&Cs or prescribed terms....

 

Best of luck:)

[atwozee]

And I quote from the signature page –

Important: please read “use of information” overleaf (Section 23 of the agreement)

Can you see a section 23 on the terms and conditions page which are apparently overleaf – I can’t because they only go up to 3.

That’s enough to dispute if the two documents are linked – the only way anyone (including a judge) can be sure is to look at the original. If they aint got it then they aint got an enforceable agreement.

BTW did they send you everything in order to satisfy the s78 request – statement of account – cancellation document – full terms and conditions including the alleged section 23 – if they haven’t then they are in default of your request and not entitled to enforce the agreement. Section 78 is very clear on what documents the creditor is supposed to supply regarding such a request – don’t settle for noncompliance when they wouldn’t if they were in your shoes.

Keep going BC and well done for how you handled Power2intimidate. I had one of those Muppets turn up a couple of months ago. The idiot asked me if I wanted to speak to blahdeblah on the phone about an outstanding balance on a credit card. How we laughed when he was introduced to my rather large Akita who was due for a run around my front garden. Needless to say I didn’t feel like talking and he didn’t feel like hanging around – shame really, the dog was hungry as well.

[beachcomber60]

No all they sent was the alleged 'agreement', T&C's when the account was opened (as posted) and current T&C's. Thanks to all for your support & encouragement.

 

Beachy

[slick132]

Hi Beachy and all.

 

Sorry guys - what I'm saying is that the next step IN ANY EVENT is to reclaim the charges on the a/c to reduce the balance.

 

Steven made comments about how the agreement could be enforceable and I'm not saying it is, or isn't.

[atwozee]

I totally agree – the issue of enforceability will only be resolved via the court. The agreement you have is improperly executed - at the very least - because it isn’t in the correct format according to the 1983 regulations. So the agreement breaches s61 (1)(a) of the CCA 1974 and only a court can enforce it.

Whether they will or not is another matter and it doesn’t stop you claiming back charges – so that’s something positive you can be doing in the meantime - although if it does go to court then your counter claim would include these anyway.

The most important thing is not to let it worry you so much that it makes you ill.

And remember – they haven’t complied with your request yet so they are on a sticky wicket to start with.

[emmaf01]

So move on from the CCA to the charges? No problem. I had just previously thought that the CCA was enough and to only go after the charges if and when they produce an enforceable agreement.

 

I already have my SAR, I'll get on it this weekend.

[beachcomber60]

Exactly my line of thinking, charges would make a good counter claim together with harrassment. Strange email from them - although the account has been terminated had email stating monthly statement on line, went to log in only to get a message that they had to new password and to ring them for password -another ploy to get me on the phone ?

[sunflower99]

Hi Beachcomber!

Just to offer moral support as i am new to this game as well!i am in same boat as you that capital one can not come up with an enforceanle CCA!In my case they keep insisiting they have sent me a signed one! LOl but they have not sent me anything signed!Just a letter with current terms and conditions and they have not even sent me the signed application form which they try to fob of as a CCA on other people who have requested a cca from them!Very odd they keep saying i have recived signed documents from them when they havent!:eek:i took citazens b advice and asked them to resend signed document as i told them they were mistaken in thinking they had!i am waiting with great interest to see what they come up with! i saw on your thread that apparently you can claim charges back when an account is in dispute and they have not provived an enforceable cca as i though you couldent do that as on some threads i saw that you canot do this and put account in dispute at same time! So now i am abit confused!I hope all goes well in your battle against crapital one!

[emmaf01]

When you send in your prelim letter asking for your charges to be refunded, you are disputing the balance owed- therefore the account goes into dispute.

[atwozee]

Sunflower, if you make a request under s77-79 of the CCA the creditor is obliged to reply – if they don’t comply fully then they are in default of your request and are not entitled to enforce the agreement. The agreement at this stage is still valid (regardless of the copy they send you) and the question of enforceability is irrelevant – so you can claim back any unlawful penalty charges.

If the creditor (or his agent) tries to pursue the debt in court (most likely) you can then ask for a ruling as to whether the agreement is enforceable. If the agreement is not enforceable then the debtor will be unable to enforce the debt – not only that – they lose all rights that they would have had if the agreement was enforceable.

Just what you can and cannot claim back in the event of an unenforceable agreement is the subject of much debate. Some people (including myself) believe that there is an argument to claim back all payments made into the account. Others do not because they believe that this would be unjust enrichment.

I don’t agree because if the right of the creditor to demand payment has been rescinded by an act of parliament (s127 (3) for instance) then there can be no claiming that the recovery of these payments are unjust because the creditor was never entitled to them in the first place. To claim unjust enrichment regarding reimbursement would be to claim that an act of parliament itself is unjust and that wouldn’t be upheld.

In the case of Wilson vs FCT She (Wilson) kept her car (that she pawned for £5k) and was reimbursed with the £6900.00 she had handed over in payment to get the car back. The point on unjust enrichment is clearly argued in that case. It seems harsh on the creditor but that is the penalty they face for improper execution of a credit agreement.

The government (probably on the advice of the banks) has now amended the act so that s127 3-5 (which precludes the court from enforcing an agreement) no longer applies but only on agreements made after April 2007.

Thats how I look at it anyway.

[beachcomber60]

Well it looks like Martins letter (post #86) completely ignored - not even acknowledged, now well and truly outside the time scale stated.

[underdog13]

Another thing to consider when challenging the balance; interest charged on default sums is supposed to be simple not compound;

Taken from the CCA amendments 2006

 

"In addition, interest on default sums will also be restricted to simple interest.

Failure to comply with the above requirements will impact on an agreement’s enforceability"

[beachcomber60]

PHEW ! Completely lost me on that one underdog, havent got a clue about working out interest rates (b a janner - pretty good at drivin tractor though)

[underdog13]

And I only scraped a pass in Maths o' level, lol:D

 

Basically I think it runs like this (please someone correct me if I'm wrong) if you have a debt of say, £100, a default charge of £12 and they add £100 to £12 and add interest to both sums, and then continue adding interest that is compound interest, ie you are paying interest on the interest.

 

The debt should be set out showing two different interest applications

original debt and the rate of (compound) interest

default sums and the rate of (simple) interest

 

Hope that makes sense:)

[beachcomber60]

Received a Notice of Immediate Action from debitarse for failing to contact c1 to arrange a payment plan, I've been trying to do this for six months now.

 

Every letter is sent recorded delivery and is ignored by c1 & debitarse including the 'Civil Procedures Protocal' (post #86) every one ignored without any form of acknowledgement from them.

 

Although I have continued to pay by standing order what I can afford, I have no idea where this money is going as the balance never changes.

 

Don't know what to do, ignore their threatogram, resend Martin's letter or what?

 

One thing I won't do is telephone them as stated in their letter.

[beachcomber60]

Hello - Anybody out there ?

[slick132]

Hi BC,

 

In the absence of any other advice, I'd simply ignore their threatening letter.

 

If you can be bothered, drop Debitas a letter saying:-

 

The a/c is in dispute as per copy letter to Cap1 enclosed.

If you write to me again in this matter, a report will be sent to the FOS for investigation, and to Trading Standards.

Until I get a proper reply from Cap1, the a/c will remain in dispute and any contact from you will be in breach of the OFT Guidelines on Debt Collection.

[beachcomber60]

Thanks Slick, Was starting to think I had been desserted after all the various comments & advice down to zero yesterday.

 

I've really had a guts full of this shower, they have ignored everything that I have sent, thankfully it always by recorded. I have maintained payments as per NDL budget sheet so I can't see how they can accuse me of not making payments/contacting C1, if their unhappy with what I'm paying they should say so & return the payments if it's not enough.

 

Anyway I intend replying to their latest letter and copying it to OFT, TS and my MP (he was very helpful with a work problem I had early this year).

[slick132]

Hi Beachy,

 

No, you hadn't been deserted but sometimes peeps just ain't about or are busy doing other stuff.

 

Just remember, when you say "they accuse me of this and that " they are really only sending out template letters generated by their system and little of it is relevant to you as an individual.

 

Send the letter to Debitas as above.

 

If you're going to send any complaint, make it to the FOS as they charge DCA's, etc to investigate.

 

Also to TS and your MP if you want and forget the OFT.

[beachcomber60]

Thanks for that Slick, had bit of a downer yesterday Iam afraid.

 

I have replied to their latest threat-o-gram, telling them exactly how I feel about them ignoring my letters, have also copied letter to FOS, OFT, TS & my MP.

[slick132]

Hi Beachy,

 

I hope you maybe feel better for telling them what you think !!

 

[lexis200]

It always makes me feel better when I vent! Especially if I've got my proper letter writing head on and can make it hugely sarcastic but also polite at the same time so they can't complain:D

[sunflower99]

Well in spite of sending a letter to P2C they did send a caller today to speak to me about my account, I refused to discuss it with him, as my neighbours were getting in their car he kept asking if Iam bankrupt or in an iva and if he phoned Capital one would I speak to them, shut the door on him. grabbed my camera and got a photo off his car before getting a copy of letter sent to P2C warning them about door callers then went out opened his car door and told him to read it very carefully.

Hi Beachcomber Emma and Atwozee! EEEEEEEEEEEEEk i have today received a similarnotice as Beachcomber! saying they are sending one of their agents to call on me this week or next week!!I thought those threats were normally idle threats! I am so glad i saw this post on your thread and i am forwarned!I will be telling my husband to keep our door bolted and locked at all times as i am normally at work most of the time!Luckily my OH does not answer door,That post i just noticed on your thread a bit of a shock to me Beachcomber,

[sunflower99]

Sunflower, if you make a request under s77-79 of the CCA the creditor is obliged to reply – if they don’t comply fully then they are in default of your request and are not entitled to enforce the agreement. The agreement at this stage is still valid (regardless of the copy they send you) and the question of enforceability is irrelevant – so you can claim back any unlawful penalty charges.

 

If the creditor (or his agent) tries to pursue the debt in court (most likely) you can then ask for a ruling as to whether the agreement is enforceable. If the agreement is not enforceable then the debtor will be unable to enforce the debt – not only that – they lose all rights that they would have had if the agreement was enforceable.

 

Just what you can and cannot claim back in the event of an unenforceable agreement is the subject of much debate. Some people (including myself) believe that there is an argument to claim back all payments made into the account. Others do not because they believe that this would be unjust enrichment.

 

I don’t agree because if the right of the creditor to demand payment has been rescinded by an act of parliament (s127 (3) for instance) then there can be no claiming that the recovery of these payments are unjust because the creditor was never entitled to them in the first place. To claim unjust enrichment regarding reimbursement would be to claim that an act of parliament itself is unjust and that wouldn’t be upheld.

 

In the case of Wilson vs FCT She (Wilson) kept her car (that she pawned for £5k) and was reimbursed with the £6900.00 she had handed over in payment to get the car back. The point on unjust enrichment is clearly argued in that case. It seems harsh on the creditor but that is the penalty they face for improper execution of a credit agreement.

 

The government (probably on the advice of the banks) has now amended the act so that s127 3-5 (which precludes the court from enforcing an agreement) no longer applies but only on agreements made after April 2007.

 

Thats how I look at it anyway.

Thanks Arwozee that was very helpful information and cleared up my confusion!

[emmaf01]

Sorry I haven't been around BC (you know the health issue reason).

 

I found that they didn't respond to anything I wrote to them OR anything I said on the phone. I would be interested to know what they are doing with your payments if the amount id not changing though. I know you have already SAR-ed them. Could you ask them for a statement of account?

 

Someone should know?