Capital One card debt (CCA)

[lexis200]

Hi

 

I've been on a payment plan with Cap1 (among others) for over 18 months now. I've just had a letter from them telling me my plan is coming to an end (which I've had twice before as they reviewed 6 monthly), but this one is a bit different.

 

I've done my own payment plan for all my creditors, but now they're saying 'the type of plan you are on is no longer available'???? They are giving me the option of a short term repayment (6months to clear it or less), or long term (in which case it carries on for as long as I need, but they'll raise a default against me).

 

Now they've tried to say they have to see proof of any benefits, statements, wages slips if employed, and something else that I can't remember. I know they don't have any right to ask for this, and I'll tell them that when I reply. What I'm not sure of though, is on the I/E form they've asked for hubbies income. I don't see how this is applicable as we deal with things separately, and they're my debts not his.

 

Can they demand his details? Not that he actually has any income, but it's the principal of it. If anything, including his details will be worse for them!

 

I'm also going to CCA them, as if they haven't got anything of worth there I want to try and stop the default before it gets onto my credit record. I have no option but the 'long term' plan they're offering, but I'd rather not be penalised for it!

 

Thanks

 

lexis

[lexis200]

wow, that was speedy, thanks:)

[lexis200]

Hi

 

I received the following in response to my CCA request last month.

 

According to the covering letter, despite being on a payment plan I need to pay them about 2.5k by today (I got the letter yesterday:rolleyes:).

 

I know the stuff they've sent is unenforceable as it stands, but is it compliant according to the Act, as I think the prescribed terms are on there?

 

If anyone could give me a shove on how to respond I'd really appreciate it!

 

Thanks for any help...

 

Lexis:)

 

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

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

cap3.jpg - Image - Photobucket - Video and Image Hosting

[lexis200]

Thanks deedee:)

[lexis200]

Hi Jogs

 

I think it was early 2004 (I'd have to check my statements), and I don't remember the form looking like that!

 

This is definitely a new agreement (£12 charges), and they actually state that they are current terms relating to the account, so they're not even attempting to cover that up:rolleyes:

 

Do you have any idea what they're like at keeping agreements? It just always seems odd to me when banks don't send the originals (well, the copy of it anyway) straight away - surely that would be the best thing for them to do??

 

Cheers

 

Lexis:)

[lexis200]

Just an update

 

About to send a 'thanks for the pointless empty current application, now please can I see my real one' letter.

 

If that doesn't get me anywhere, I think I'll try S.A.R - (Subject Access Request)'ing them for it (not that I really want to spend the tenner doing that, as I don't have much at all in the way of charges. Yet:rolleyes:

[lexis200]

Thanks for that deedee

 

I was going to get off a letter asking to see an actual copy a few days ago, but personal circumstances have overridden that so it's on hold for a minute.

 

As they don't appear to be doing anything much at the moment regarding my payment plan (ie it's still going), I think I'll hold fire for a minute then get a letter off when we're a bit calmer at home - I'm not sure I could cope with another bank being an a**e at the moment!

 

The trouble is, I think at the moment they've pretty much complied with the request, even though it's not enforceable as it stands, so I don't want to kick off with them just yet as I'm sure that'll be trotted out the moment I mention anything's wrong.

 

Btw, you said 'I hope CCA 1974 also governs your agreement as you took out the card in 1999'. Is there something I've missed in my reading? I thought that everything was covered up until last year when it changed - or do I need to go reading up on something else too:confused:

 

Thanks again

 

Lexis:)

[lexis200]

No worries, I'm easily confused:)

[lexis200]

I decided to let this hang for a bit as I didn't want to kick off with them, and didn't know what to put in the letter (meant to search but didn't have the time), but I've had a Default notice through the post and obviously if I can halt that I'd like to.

 

How should I proceed with this?

 

As far as I can see, what they've sent satisfies the remit for the CCA, but is completely unenforceable. If that's correct, does anyone have a good letter I can use to let them know (nothing I have quite fits, and I don't know how to word it properly for the best effect).

 

The Default was sent on the 23rd Oct, giving me 28 days to remedy (I know I've left it late - we've had a lot of personal issues that have overtaken recently). It was sent as they've changed the way their payment plans work, so they've taken me off the one I was on and put me on a 'long term plan', which apparently involves them defaulting me.

 

Is there any way I can use the current lack of an enforceable agreement to stop this for the time being (even though I think it satisfies the CCA request), or are they likely to carry on regardless?

 

Thanks

 

Lexis:)

[lexis200]

Hi CB

 

I thought it complied as it has the prescribed terms on it etc, and is just missing my details (which they're allowed to do?)

 

I suppose it may be possible to have the default removed if it turns out they have nothing...

 

Would you suggest just sending the standard 'not what I asked for' letter then? If so I can knock that up in a few minutes:D

 

I am still paying a small amount, but only because I was a) unsure about the compliance aspect and b)coz of all the personal stuff going on, I didn't want another fight just yet! However, as they've started with this default stuff I may as well now - it's not like they can default me again:rolleyes: Well they might try, but they'll be very naughty bunnies if they do!

[lexis200]

Hi again CB

 

As far as I can see, the prescribed terms are the top three bits of info on the left (it's hard to see on the scan). They show Credit Limit, Monthly Payments and APR. There is a place for a signature on the right, but it looks to me like it relates to PPI, not the agreement.

 

It definitely is a current set of terms on there though - £12 charges and a different interest rate to the one I had.

 

I'm going to just go ahead and send the letter - after all, even if it does have the prescribed terms on it, it's still meant to be an identical (although not necessarily signed etc) copy to the one I would have signed in '04. This is plainly a later version, so I'm happy enough to play letter tennis for a while over that.

 

I've also just noticed the bit at the bottom of the page with the small print on it 'This document sets out the current terms of your agreement with us. This document includes information under the headlines 'APR...which do not necessarily reflect your current terms but were the case at the time your account was set up'. This isn't right, as the APR quoted is completely wrong.

 

The really odd thing though is that it seems to be a mis-match of an agreement - on one side they talk about transactions prior to and after May 2005, but on the other side they have £12 charges and 'we will send your card and pin'. Very strange.

 

I'm not going to obsess over it any more though. I'll get the letter out tomorrow (with a big red Formal Complaint, Account in Dispute header:)), then it's done!

[lexis200]

Feel free to watch - I'm sending out the letter tomorrow, so I'll keep this updated with any response:)

 

They can send out an unsigned, essentially blank copy and it can still comply with the Act, but it must be a true copy of what you would have signed at the time, not a copy of a current agreement. But, just because it's a true copy doesn't make it enforceable - for that to happen they need to be able to supply you with a document that bears your signature, and the prescribed terms within the signature page, or if on more than one page the pages must be linkable in some way (ie ref. nos etc) - otherwise it could be your signature with any old terms slapped on the back.

 

It's all very confusing, which is why I've been umming and ahhing about doing anything, but now I'm going ahead anyway. If you have a look at the link in post 8 you should find quite a lot of info there to help you.

 

Lexis

[lexis200]

Ok, letter done and ready to go. I did amend the normal one slightly as I do think the terms are on there, however it still falls short on the signature box, being current rather than applying at the time of the account inception, and obviously being blank.

 

For what it's worth, I did include that while it's unenforceable they can't apply defaults etc, but I doubt it'll do anything. No harm in chancing my arm though!

 

Keep your fingers crossed for me

 

 

ps - thank you for the click SB100:)

[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:)

[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:)

[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:)

[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:)

[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:)

[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...

[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?

[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.

[lexis200]

Thanks for that CitizenB, I'll scurry off to amend that asap.

 

I normally do bullet points raised, but they ignore them. I was going on a different tack this time:D I think I'll do both, then it just serves the purpose of making them seem more like morons than normal if they don't answer them.

 

The date thing just got my attention as it was sent so that it would arrive on the last day before they were out of time. With any other institutions I would say this was a coincidence, but for some reason I'm strangely suspicious of the banks. Can't think why;)

 

Did you bother going to the ICO when they didn't comply? I've not had to do it before as the threat seemed to kick them into touch.

[lexis200]

Letter amended as per your thoughts CB, and going off today.

 

Wish me luck:D