Any Opinions Please?

[Misterzeus]

Good morning, Mrs Z here.

 

I would appreciate anyone’s opinion on whether this Cap One CCA is enforceable or not?

 

I have put links to all the paperwork received from them yesterday.

 

 

http://i305.photobucket.com/albums/nn216/Misterzeus/CapOneCCA.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/caponelett.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/CapOneLetter2.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/CapOneletter3.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/TCfront.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/TcBack-1.jpg

 

 

Much appreciated, thank you

[42man]

I notice they have put 'current' terms !! when was this taken out ?

[Misterzeus]

Thanks 42man, it was taken out in 2002.

[Misterzeus]

Anyone - please?

[42man]

I'd say they haven't complied as they haven't sent you the original terms.....however from what I can see it does have the prescribed key elements...

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[42man]

It might be worth sending them this...

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act. You also seem to be under the impression that a copy of their current terms applies !!

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

 

Please note you may also consider this letter 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 including any defaults. 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 fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[Misterzeus]

Thanks so much once again 42man, very helpful

 

Just one thing though, their signature on the CCA looks rather strange, looks like it may have been super imposed on?? Maybe it's my over active imagination! But it just doesn't look right.

 

Thanks again

 

Mrs Z

[42man]

If you suspect fraud, I would highlight that in the letter too Mrs Z....

 

You could add a query on the signature and state that if you suspect fraud, you will approach the police...

[Misterzeus]

Sorry 42man my earlier post must have crossed with your other post! Thanks for the letter template.

 

Regarding the signature, I'm a bit worried about making fraud allegations, although it does look suspect in my opinion. Perhaps I could say it in a roundabout way! I shall have to think about that!

 

Thanks very much again

 

Regards, Mrs Z

[42man]

Say, there is a issue with your signature and 'If' you suspect fraud.....

[Misterzeus]

Thanks 42man

 

The signature I'm refering to is Cap One's representative and not Mr Z's. I take it that their rep's signature doesn't matter then ( the fact that it looks odd I mean)?

 

Thanks again, Mrs Z

[42man]

I see what you mean it looks like somebody has doodled on the form !!

[Misterzeus]

The more I think about it and have looked again, it is weird and doesn't really look like a signature at all! Compared to Mr Z's signature it does look decidedly dodgey!!

 

Does it make a difference though?

 

I tried to write a few words in Adamsky Outline SF font but it changes when I preview my post! That style font reminds me of their rep's signature! If you see what I mean

 

 

Thanks again 42man

[Misterzeus]

Hi all, Mrs Z here.

 

After writing a letter to Capital One (using the template that 42man kindly provided) informing them that the CCA they sent was basically not good enough, they replied stating that they would not be able to send any different documentation to support Mr Z's request.

 

Today Mr Z has received the following letter from Cap One:

 

http://i305.photobucket.com/albums/nn216/Misterzeus/caponefinal.jpg

 

I think I know the answer… but, should we file and ignore or respond?

 

Any input gratefully received, thank you in advance!

 

Mrs Z

[Misterzeus]

Anyone have any advice please?

 

Mrs Z

[spamheed]

It's basically a default notice, it advises the current status of the account, the payments missed and how to correct the default, this seems correct. except that since you have placed the account in dispute, they should not be placing defaults against the account whilst it is in dispute.

 

IN order for them to pass the debt onto a debt collection agency, the debt should be in default, so obviously they are preparing the ground for the next stage of their enforcement process, again, they should not be doing this if there is a dispute against the account

[Misterzeus]

Thanks for your reply spamheed

 

What a strange Default Notice!

 

I had a feeling it may be leading up to being passed on to some DCA **** or other!

 

What will be, will be and will await what happens next.

 

Thanks again

 

Regards

 

Mrs Z

[Misterzeus]

Good afternoon all, Mrs Z here.

 

Mr Z received a Default Notice from Cap 1 at the end of Jan giving 28 days to rectify.

 

I have been reading through a few of the Cap 1 threads with great interest.

 

I have reposted the links to what was sent from Cap 1 regarding Mr Z's CCA request. The "application form" sent doesn't contain the prescribed terms as kindly provided by 42man:

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

The only thing the application form states is on the reverse is - see reverse for important Balance Transfer information. That form number ends in 02 when it was applied for.

 

Also, the rest of the paperwork is 2008 related - their letter's numbers ends with 08.

 

 

 

http://i305.photobucket.com/albums/n.../CapOneCCA.jpg

 

http://i305.photobucket.com/albums/n...caponelett.jpg

 

http://i305.photobucket.com/albums/n...OneLetter2.jpg

 

http://i305.photobucket.com/albums/n...Oneletter3.jpg

 

http://i305.photobucket.com/albums/n...us/TCfront.jpg

 

http://i305.photobucket.com/albums/n...s/TcBack-1.jpg

 

Presumably, once the 28 days is up it will be passed on to a DCA so would very much appreciate any comments/advice on whether or not this application form is actually compliant - as we think it is not!

 

Thanks in advance

 

Mrs Z

[Von Greenbach]

Mr Z received a Default Notice from Cap 1 at the end of Jan giving 28 days to rectify

Hi Mrs Z

 

Can you post up the DN to have it checked

[Misterzeus]

Hi Von Greenbach, thanks for your reply

 

Links to front and back of DN:

 

 

http://i305.photobucket.com/albums/nn216/Misterzeus/Cap1DNfront.jpg

 

http://i305.photobucket.com/albums/nn216/Misterzeus/Cap1DNBack.jpg

 

Think it's probably compliant though.

 

Thanks again

 

Regards

 

Mrs Z

[Von Greenbach]

Think it's probably compliant though

Hi

 

You'll be pleased to hear it's not complaint as they've not given you a date when to fix the remedy.

 

Just saying 28 days is not good enough, even tho 14 is what's required.

[Misterzeus]

Thanks again Von Greenbach! That was quick!

 

I'm surprised, I thought that as they've given 28 days it would suffice! Just goes to show doesn't it!!

 

Thanks again

 

I would still like some opinions on the "alleged" CCA though please anyone?

 

Thanks

 

Regards

 

Mrs Z

[cerberusalert]

As usual with Crap1, an application form containing non of the prescribed terms as you say:(

 

Send the idiots the following;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

 

 

 

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Your name Printed

[Von Greenbach]

I'm surprised, I thought that as they've given 28 days it would suffice! Just goes to show doesn't it!!

The act says they must give a date, as they've failed, it makes the DN ineffective.

I would still like some opinions on the "alleged" CCA though please anyone?

CCAs I'm not experienced with but I'm sure someone will be along soon.

[Misterzeus]

Thanks for the brilliant letter cerberusalert, I shall get that typed up and sent off to cap 1!

 

Thanks again von Greenbach, another faux pas (invalid DN) on their part then!!

 

Regards

 

Mrs Z