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Morning Emma, thanks for the reply, don't honestly know what to do. The last time I actually spoke to them (about 6-8 weeks ago) I actually told them to take me to court - no sign of that (yet).

 

Still waiting for sar to arrive, don't know next step regarding cca, they also included current t&c's which shows credit limit so not sure if that makes it enforceable.

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Have you worked out how much you can afford to pay them? And I really mean afford long term, not crippling yourself.

 

And remember you will have charges to reclaim, reducing the balance. Don't forget to work out the interest on the charges to be taken off as well. All of this will be claimed back.

 

I'm finding waiting for this to be extremely stressful- I always do. I prefer to be doing something myself, not waiting for some nebulous response. So I am gathering all the statements I have, to work out provisional figures. I may send a prelim, with a request for copies of the last three statements which are missing. I'd love to do a S.A.R - (Subject Access Request). but money wise it would have to wait. I'm also doing my husband's Cap1 charges and Virgin late payment fees, just to stop myself from fretting.

 

I know you and your wife are finding Cap1's behaviour incredibly intimidating. It is harassment. And it is worth having a chat with your local police on the non-emergency number. Remember Cap1 cannot do anything to you. You merely owe them some money. You haven't done anything illegal. If you owed a normal person in the street £10 and they started phoning you and abusing you like Cap1 have been doing, you would phone the police. Why is this situation any different?

 

Plus it would look great in a harassment claim, wouldn't it?

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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received the very same cca 'application'.... sent SAR and got statements basically with some manual notes BUT they sent me somebody else's personal and financial detais.. bout 50 pages!! Mine missing. Wrote to Capital One and no reply whatsoever. Have written again and still not one reply to my formal complaint regarding the breach of Data Protection Act... have also informed third party who is aking complaint.. also to ICO

 

My main complaint in 2007 to the FOS was peanlty charges and phone calls. Capital One offered the penalty charges back but made no mention at all sbout my complaint about phone calls. I refused their offer as a result. More than 6 months later I get an FOS ajudicator who has asked for my latest documentation. i really am not very hopeful at all about the FOS supporting my claim to investigate and reprimand Capital One for making all these calls based on what other people have stated the FOS has said in the past... ie they can call us once a week... and this means try and try and try as much as they want until they get trhough..... I called it blackmail to be honest as Capital One have stated they will only stop calling if I a. pay or b. pay basically!!

 

Will keep you informed of outcome. Be aware that it is very true that Capital one hardly ever reply to letters ...........

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I was about to post mine up here and notied this thread. Mine too is the exact same. Why exactly is this unenforceable? Do the presribed terms have to be on the same sheet as the signature? Has anyone here been to Court and argued about this type of agreement where the terms are on another page?

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What prescribed terms?

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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The first sheet (with the signature) states the following "I have read the terms and conditions setting out the agreement with Capital One and, if my application is accepted, I agree to be bound by these terms and conditions".

 

s189 of the CCA1974 states that

"a document embodies a provision if the provision is set out either in the document itself or in another document refered to in it".

 

It follows that if the prescribed terms are within some other document referred to in the signed document (in this case, the terms and conditions) then it is enforceable.

 

I'd love some comments on this as Im a bit of a novice. I have the exact same "agreement" as the original poster, as do a lot of people on here.

 

Why exactly do any of you believe this to be unenforceable?

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What I would add here however, is that to properly fulfill a CCA request the creditor must supply a full copy of any other document refered to as part of the signed agreement. In this case, a full copy of the T&C at the time.

 

Cap1 have clearly not done this in this case (or mine). The 2nd sheet is not a full copy of the T&C (no mention of late charges for example). IMO they have not fulfilled the CCA request and Ill be putting them on notice of default (but perhaps not spell it out to them exactly why they have not properly complied hehehehe)!!!!!

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Hi John- do you have your own thread where we could link to, specifically about your situation?

 

Look at this thread to see about what makes an agreement enforceable.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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I didnt want to start a new thread for this as its the exact same documents that are posted here at the start of the thread. No point goin over the same stuff in different threads if it can be avoided.

 

I have checked the link thanks emma. There doesnt seem to be a definitive answer out there for this which is strange as a lot of people seem to get this exact response from Cap1.

 

Ignore POST 32 from me as I found answers in another thread. It appears that the enforceability of this is whether or not Cap1 can produce an original 2-sided document with the 2nd sheet (terms) on the back. In any event, they are currently in breach of the CCA request by not supplying the full T&C. I'll keep them at bay on this point until someone can (hopefully) come up with an strong argument (or case law) regarding the enforceability issue.

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Who's hijacking my thread then?

 

Tried ringing TS yesterday, follow up to my letter) their phone was ringing & ringing & ringing etc etc - CP1 now standing at 136 calls/34 days.

 

Re: cca unenforceability, for starters there is no credit limit/APR or charges stated. In addition they are about to run out of time with my SAR request.

 

The screw has turned, as I drive approx 300 miles at night I have been forced to take time off due to lack of sleep ( my employer has quoted health & safety). Managed now to block their calls but cannot do anything about their off shore call centre.

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"Re: cca unenforceability, for starters there is no credit limit/APR or charges stated".

 

If you look at the 2nd document there is APR and breakdown shown in a table. Charges are not a prescribed term according to CCA1974 so its fine to have them detailed in a separate T&C booklet.

 

I would agree that there is no credit limit shown, simply a statement that says it will be notified and is subject to change (section 2 of the 2nd document). IMO, if MBNA show up to Court with a double sided document with those terms on the back, your only possible defence is that there is no credit limit shown. It seems weak to me but at the end of the day the CCA regs are absolute, credit limit is a prescribed term according to the info from Emma's thread above and if its not specified in the "4 corners of the agreement document" then a Court should rule it unenforceable.

 

Anyone else have any thoughts or experience in relation to this? Arguing unenforceability solely because no credit limit is specified within the agreement?

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Hello John, Thank you for your comments, my remark was a lighthearted comment in reply to you using my CCA docs as an example to your own cca after Emma suggested that you start your own thread detailing your own situation.

 

I have my own issues with Cap.One and I wouldn't like your situation with them to get confused with mine.

 

Emma has been an absolute gem since I started posting and to be honest brought me back from the brink of total despair.

 

Jim

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HI beachcomber60;

 

The only real sure way to stop these calls is to make a complaint to bt or whoever your phone line is with and get a special protected number due to harrasment that stopped them dead in the water immediately worked for me also changed mobil no one has phoned from those dca idiots in 18mths:D

 

good luck

 

ooc

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Hi Beachcomber60- I think Capital One are officially taking the **** with these phone calls. And now, thanks to your boss, I think you have a clear cut case for harassment.

 

I've PMed you with an idea.

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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Im going to start my own thread to discuss the legality and enforceability of this type of agreement. I'm really interested in any opinions about my post #37.

 

How do I upload scans like the original post here? Do I need to upload to an imagehost site? I've uploaded some scans to here as attachments but cannot find the option to put them into a post. Thanks all and goodluck Jim. I'll post back here if I get any further solid info re: enforceability.

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Ok, on the face of it the first part i presume has your signature, however there is no mention on that page as to where the Prescribed Terms are to be found, therefore IMO this is unenforcable

 

can they just mention these in the 1st page of agreement?

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Does it include the prescribed terms? Is at actually a Consumer Credit Agreement or an application under the Consumer Credit Act?

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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Yes, it does mention "application for credit" but it is also clearly marked as an Agreement under the Consumer Credit Act 1974. There is a 2nd photocopied page also marked as an Agreement which contains the prescribed terms. I have the exact same two documents sent to me by Cap1. I have posted here already that if the 2nd photocopied page is on the back of the original signature page (or the creditor can prove to the Court that it somehow clearly links to the signature page) then it is likely to be enforceable.

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Have you checked the charges amounts- unfortunately the documents are no longer up on this thread to look at, so I can't.

 

And are they up on your thread, John?

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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Well thats bit of a bummer ! Someone had to pour water on my fire.

 

Six say its not enforceable, one says it is.

 

"No prescribed terms, not list of penalty charges,

 

"Please supply me with ......"

 

"If your application is successful ......."

 

The fight continues !

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