Capital One card debt (CCA)

[SB100]

I'm just about to write to them- would tou mind sharing what you're sending them?

 

Thanks

[citizenB]

Lexis, I have linked you to mine and OH's capital one so called agreements. Neither of these are compliant.. however you should have received something fairly similar

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1448801.html

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1514931.html

[citizenB]

The following is also and interesting read...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/152569-horwich-farrelly-robinson-way.html

[lexis200]

Thanks CB, I've had a quick look, but I'll need to go back later and read through properly as I'm only in and out for a few days.

 

SB100, this is the letter I sent them. Feel free to use it if you would like - it's a mix of several I've found throughout the site, along with a bit I like about the final response (courtesy of CB:)). If you have your own thread I'm sure you'll get ideas from that too, so you really have to decide what you're happy with sending.

 

I tend to explain exactly what I want (and what they know they should have supplied) in order to give them as little wiggle room as possible, but I know other members who prefer to be more vague when sending the non-compliance letters for precisely that - because they know what they need to do.

 

Re − Account Number xxxxx

 

ACCOUNT IN DISPUTE

FORMAL COMPLAINT

 

Thank you for your recent letter sent to me, postmarked xth October and received on the xth October, the contents of which are noted.

 

I note that you have replied to my request by sending a copy of the current terms and conditions associated with the account. I must inform you that this is not sufficient to comply with my request and that your company is still in default under the Consumer Credit Act 1974 (the Act).

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account, providing that a fee of £1.00 is paid. This fee was sent with my original letter, received at your offices on the xxth September.

 

Sending only the current terms and conditions is a breach of the Act and Consumer Credit (Agreements) Regulations 1983 as, apart from the information that the regulations provide that you may exclude, the copy must be a “true copy” of the agreement. For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Section 3(2) of the same regulations states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instru*ment 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 there under as to the form and content of the document of which it is a copy.

What you have sent me does not have the required inclusions, and is not in the correct form.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law, as shown below.

 

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

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.

 

You had until the 15th October 2008 to provide me with the true copy I requested. After that date you entered into, and currently remain in, default of my request.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection which was issued July 2003 (updated December 2006), relating to debt collections and what the OFT considers unfair. I have enclosed an excerpt from page 5 of the guidance which states:

 

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

Whilst the account remains in dispute (for clarity, the lack of a compliant credit agreement is a very clear dispute), under section 78(1) of the Consumer Credit Act 1974 you may not enforce the agreement. This includes, but is not limited to, the following:

 

-You may not demand any payment on this account, nor am I obliged to offer any payment to you.

-You may not add any further interest or charges to this account.

-You may not pass this account to any third party.

-You may not register any information in respect of this account with any of the credit reference agencies. The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent (given in the form of a signed credit agreement) will be met with a complaint to the Information Commissioners Office.

-You may not issue a default notice related to this account.

 

Please note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

I am also giving formal notice that under Section 10 of the Data Protection Act I require you to cease processing any data in relation to this account with immediate effect.

 

I would ask that if it is not your intention to fully investigate my complaints, that you advise me of your final response at the earliest opportunity in order for me to escalate my complaint to the Financial Ombudsman Service.

 

Also, please ensure you enclose a copy of your standard complaints procedure so that I am aware of the timescales afforded to you.

 

I look forward to your prompt reply.

 

Yours sincerely

 

 

Don't forget - do not sign it!!!

 

 

Hope this helps

 

 

Lexis:)

[lexis200]

Okie dokie

 

Had a letter back from them saying essentially that it is compliant, they're not obliged to send anything else, and they'd like all their money back right now (I re-arranged the payment plan a couple of weeks ago to give a bit of breathing space, so this I'm hoping is hot air).

 

I'll post it later, but my scanner is out at the moment and I'm a bit of a girl when it comes to that:D I can put up shelves and stuff, but the scanner gets me every time.

 

What I'm wondering now is, is there any way I can get them to send what they actually have in the way of any agreement (rather than a blank current set of terms) without going down the court route?

 

Would an SAR work for this perhaps?

 

Thanks for any help.

 

Lexis:)

[citizenB]

Hi Lexis, I dont know what to advise here. If they havent got a copy of the agreement then an SAR isnt going to produce it either. I wonder if waiting them out until they set someone else on you.. then you can send them a version of the HBOS/BOS letter. However, if you are paying them on a reduced plan, they might not take it any further at the moment.

 

Bit of a dilemma methinks.

[lexis200]

But that would be good CB, if I can do the Subject Access Request and specifically request a copy of the signed executed agreement and they chuck the same old thing in, then they're either not complying with the Subject Access Request, or they don't have a proper agreement.

 

If it's the first then I assume they'd be in trouble with the Information Commissioners Office (and if it got to court, the judge), if it's the second then it just confirms what I think, which is that they don't hold a proper copy.

 

What I'm really saying is, is it possible to ask for sight of a signed etc copy within an Subject Access Request, or does it fall under the same rules as for a CCA (ie that they can wriggle out of it unless I decide to push them to court action)

 

I hope that makes sense:)

 

Lexis:)

[citizenB]

Hi Lexis, yes of course, my apologies.

 

Yes, you should in fact make asking for a copy of the agreement one of the first requests on the Subject Access Request list

 

Under the CCA 1974 regs they are obliged to send you the copy within 12 +2 days and enter default of that request if not supplied. If they dont supply it with the SAR then you make a formal complaint to the ICO, with the next step being court enforcement to supply

[lexis200]

Hello hello:)

 

I've just had a look at maz's thread where BOS issued a default notice.

 

CCM posted this helpful bit

 

Heres the info on DNs to help you,

 

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

37. Also the notice fails to set out the statement as set out below

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

 

 

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

39. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)to enforce any security.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

 

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

 

On the notice I had from Cap1 - the bit in red does not have the 'or a surety' on the end - does that cause them any problems?

 

I can't find the regulation on the net so that I can have a look and see if the rest is done properly - can anyone point me in the right direction for them please?

 

Thanks

 

Lexis:)

[citizenB]

I dont think I can help on this one, Lexis. However, if that is what the regulations say.. then it must be correct. I think I have seen it said that the prescribed terms are not to be messed with as well.. I have looked through some of OH's default notices and it would be brilliant if that missing bit makes a difference, cos only one of them has it on

[citizenB]

I just found this from a defence by Paul Walton (Champion against RBS )If you scroll down you will see that what CCM has posted is absolutely correct so yes.....Yipeee.. looks like you might have found another nail.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1382595.html

[lexis200]

Thanks CB, that's sounding good isn't it:D And for you too it looks like!!!

 

I'm going to get OH to scan my default in later, then see if I can get CCM to have a look and just confirm I'm not making a huge mistake and misreading the default somehow, as he seems to know his onions on defaults. Then (assuming they've cocked up, which I'm crossing everything for), try and work out a letter telling them as much.

 

As for getting a copy of anything they have included in the SAR, I've amended the request to:

 

- Full copies of all contracts which you believe exist or have existed between myself and your organisation, including true copies of any original documents and their original associated terms and conditions you hold in support of the same. I wish to make it plain I do not require or want any blank/generic documents, but only actual copies of signed documents and their associated terms etc. If you no longer hold these, or can not fulfil my legal request in any other way, I require you to inform me of this in writing, including the reasons for not supplying anything mentioned, or for supplying anything that varies from the specific format I have requested.

 

Is that ok do you think?

 

 

Lexis:)

[citizenB]

Perfect

[lexis200]

Received SAR today - counting down....

 

I've decided not to bother responding to the letter they sent stating the blank document was enforceable. I'll wait and see what the SAR turns up, and go from there - that gives me Christmas off:)

[citizenB]

That sounds like a good plan to me, Lexis

[lexis200]

It's taking some restraint to do it! I don't like leaving things in the air, but I just can't be ar**ed at the moment:)

[lexis200]

Right, finally managed to get default notice scanned!

 

cap1-1.jpg - Image - Photobucket - Video and Image Hosting

cap2-1.jpg - Image - Photobucket - Video and Image Hosting

 

Bad news first - the 'or a surety' bit can be omitted by the creditor if it's not required according to the 1983 regs. On the plus side (at least I think it's a plus side) though, their use of capitals and underlining is not how the text is shown in the regs. Seeing as there should not be any deviation from the prescribed form, I think this may be a problem for them.

 

My ideal scenario with this is that they have cocked up with the form of their DN, that they actually terminate the account as they say they will, then I mention their invalid default and they end up being screwed:)

 

If anyone can say yes or no to whether the incorrect use of capitals/underlining is fatal for them I'd be very happy to hear it!

 

Meanwhile, the clock is still ticking on the SAR...

[citizenB]

Whilst they give you a time of "28 days from the date of this letter" I believe they MUST put a remedy date.

 

If the underlining isnt correct then I guess neither is the DN.

[alangee]

Also they haven't stated an amount. Only minimum payments. Where it says Balance is that the full amount or just the arrears?

 

Alangee

[lexis200]

Thanks for looking:)

 

It is the actual balance (I think, I haven't had statements for a while since being on a p/p). The last arrears notice they sent me - when I asked them for the CCA and they sent it, along with a letter saying pay this yesterday - had about £2k, this shows about £4k which would be right(ish)

 

So with the incorrect lettering, not giving a remedy date and not giving an actual amount (I thought just showing it was enough!), they've shot themselves in the foot a bit here haven't they?

 

Would I be right in thinking it would now be a good thing if they have terminated the account, as they then lose the right to all but the arrears?

[citizenB]

Lexis, I think BRW has several posts confirming this.

Edited January 12, 2009 by citizenB

[citizenB]

Hi AA99,

 

Once an agreement is terminated as a result in issuing a defective\ineffective Default Notice they cannot claim the full amount owed but only the amount stated that the debtor is in arrears.

 

The amounts may vary but it can be as much as a five figure sum which I think is very good news for millymollymoo.

 

The above post was made by supasnooper link below.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1909184.html

[lexis200]

Okie dokie

 

Got the SAR back today - sent speccy delivery yesterday, but dated 30th December. I'm still confused as to why the banks feel the need to do this?

 

Anyway, needless to say the CCA was not included. This is my response, for any comments:)

 

Thank you for the information supplied with regards to my Subject Access Request, received today by Special Delivery. I note that your letter is dated 30th December 2008, and am interested to know why, when it was compiled then, did it take a further 20 days to reach me?

Although you have sent some of the information requested, there are outstanding documents that I specifically requested. In addition to this, I have concerns about your banking methods, having read through some of the memos included.

First I would like to address one of the comments in the memos made on the 11th April 2008. It regarded my pro-rata amount being insufficient as the benefit I am claiming would have been paid two-weekly rather than monthly. Because of this, you insisted that I increased my payment to over double the amount I had offered.

These are not payments made so that I may go and spend evenings out, they are the amount the government has allocated as what we need for essentials. You will be well aware that as my income is mainly made up from benefits, the amount you were being paid was already more than I needed to offer.

Please can you inform me why it is your business practice to force payments to increase due to benefit payments?

You appear to be well aware that this practice would be viewed in a very dim light by the regulatory bodies, as after my last review, and once I had informed you that I had contacted the National Debtline, you quickly accepted the amount offered.

Please could you also inform me what the phrases ‘events purge’ and ‘history purge’ mean, as it suggests removal of information?

With regards to documents not included. I was very specific in what I asked for, and I have included my original request for your convenience.

You have not included the true copies of original documents, and their associated terms and conditions. As the account was opened in 2004, this should not cause a problem for you.

I will re-iterate what was written in my original request. I do not require blank documents that allude to what would have been in force, or current terms and conditions. I require copies of original signed documents along with any and all related historic terms.

If you do not hold these, please confirm that they have been deleted or disposed of. Please include the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

I would also like to state that either your abbreviation codes are vastly out of date, or Capital One staff simply do not use them. Whether this is a deliberate attempt to confuse, or simply that Capital One staff do not adhere to the codes supplied is unclear. Suffice to say the list of abbreviations you included does not go far in helping to decode the shorthand used.

For your convenience and so that there is no confusion, there are 4 distinct questions contained in this letter. Please ensure they are all answered.

In addition to the above, your opinions on my last point regarding codes used would be of interest to me.

With regards to the SAR, this is still incomplete. The 40 day timescale expired today. Please be aware that if I do not have the documents requested, or the confirmation that they have been deleted/disposed of within 7 days of receiving this Recorded delivery letter (as shown on Royal Mail’s website), I will be informing the Information Commissioners Office of your non-compliance. As you have already passed the statutory time allowed, I feel I am being more than fair.

I look forward to your prompt written response.

[citizenB]

Lexis.. I would number or bullet point the 4 distinct issues you have raised. It will be a Capital One employee reading this letter..... IYKWIM:lol:

 

I have a feeling that some benefits arent allowed to be included within an I&E.. As you rightly say, these benefits are the absolute minimum that you are given for essentials.. I cant see a credit card account being included in that. Perhaps you could confirm that with National Debtline, or maybe BabyBear or RMW would be able to advise you.

 

As regards the date on the letter versus the date they posted it... I think I can help out there. I believe what happens is someone prints off the letter within the 40 day timescale.. they then send it to the department who have to attach all the documents requested.. one assumes it should be used as a check list as well... but we know what ass u me means dont we !!

 

I think you have covered all the points

[citizenB]

PS.. just to let you know.. when I received my incomplete SAR from Capital One, I wrote back just as you have, giving them an extra 14 days (wasnt I generous) to fully comply.

 

39 days later I received a letter from the Data Controller advising that they couldnt deal with my request because I hadnt included the £10.00 fee... ???. So make it quite clear in the heading or the first paragraph that your letter is in respect of an incomplete SAR and not a new request.