Just Recieved A Signed Capital One Agreement

[sunflower99]

Hi everyone i just recived a signed application form in a second response i recieved from capital oneto my cca request which they claim doubles up as a credit agreement,Would like to hear peoples views about this

[noomill060]

Could you scan it and post it up- (after removing your name, address account number etc)

 

Crap1 agreements are usually totally unenforceable.

 

When did you take out the card?

[flyingdoc]

unless the prescribed terms are all included on this "application form" then it dont cut it. can you post the form (with all personal details removed)

[sunflower99]

[sunflower99]

trying to get printing larger but not sure how!

[Pinky69]

Capital One and "agreement" are a contradiction in terms - they forgot to make any. This is the usual non-enforceable rubbish that everyone has had - not a prescribed term in sight. I've been ignoring them since last March and saved myself a lot of hassle by not writing to them.

[sosumi]

Capital One and "agreement" are a contradiction in terms - they forgot to make any. This is the usual non-enforceable rubbish that everyone has had - not a prescribed term in sight. I've been ignoring them since last March and saved myself a lot of hassle by not writing to them.

Completely agree

[twofoot]

Looks like they are prize plumbers, they sent you a load of ball cocks

[ScabHunter]

It is not legible, but it doesn't look as though there are any prescribed terms anywhere.

 

Have you got a Photobucket account?

 

SH

[sunflower99]

Please issue to me a Capital One Credit Card and Pin.I confirm that all the information i have given is true and complete .i understand that this information will be checkedwith fraud prevention agencies and if i give you false or inaccurate information and you suspect fraud you will record this.i authorise Caoital One to search the files of any credit reference agency agency for my application and to help you manage my account.The credit reference agencies will record details of Caoital Ones search and your application .Information held about you by the credit reference agencies may already be linked to records relatiing to one or more people with whom you have a fiancial association.For any searches Capital One makes you may be treated as linked to them and you will be assessed with reference to their records.We may also add to your record with credit reference agencies details of how you conduct your capital One account (including defaults )

Capital One and other organisations may use and search these records about you and those to whom you are fiancially linked to

 

help make decisions about credit and credit related services suuch as insurance for me or members of my household

 

trace debtors ,recover debt,prevent fraud and to manage my accounts

check my idntity to prevent money laundering unless we are satisfied about your identity

[sunflower99]

Hi everyone i am typing out what is written on application form gradually as it is quite a long job and i cant seem to get image bigger or more legible on photobucket!unfortunatly they do send some terms and conditions on another piece of paper and actually allude on signed application form to some terms overleaf which is a bit of a blow!i am adually typing out what is on front of this signed application form over several posts to give you clear information about what is on front!

[sunflower99]

Fraud prevention agency records will also be shared with other organisations to manage insurance policies and help make decisions on motor ,household credit life and other insurance proposals and insurance claims for me and members of my household .The credit reference agencies and fraud prevention agencies will also use the records for statisical analysis about credit and fraud.

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 as amended from time to time .i am over 18 years of age.

credit scoring .capital One uses a technique known as credit scoring in deciding whether to open an Account in your name and if so what credit you will be given.Capital one will also use this technique throughout the life of this agreement to assess your credit limit and the interest rate and other changes to be applied to your accoubt all of which may be varied.

[sunflower99]

Phew! Im nearly finished! LOL but this final pharagraph i am going to type out in minute is the worrying bit!

Edited December 10, 2008 by sunflower99

[noomill060]

OK, well done for getting all that crapital1 sh1te typed.

 

In order for an agreement to be enforceable, there only need to be four pieces of information, called prescribed terms.

 

1. Number of repayments;

 

2. Amount of repayments;

 

3. Frequency and timing of repayments;

 

4. Dates of repayments;

 

5. 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.

 

 

 

If it doesnt have these, its only use is as a paper dart.

[sunflower99]

Your information and marketing important please read "use of information overleaf:eek:(section 23 of the agreement ) which sets out how your information will be used .By signing this application ,you agree that information may be used like this regardless of whether or not your application is accepted .One of the ways your information will be used is to send you information or phone you about otyher products or services offered by Capital One or other companies .your name address and phone number may be given to those other companies for that purpose .If you do not wish to receive marketing material and you have not already advised us please write to us at Capital One Bank PO Box 5285 Nottingham NG2 3YN

[sunflower99]

OK, well done for getting all that crapital1 sh1te typed.

 

In order for an agreement to be enforceable, there only need to be four pieces of information, called prescribed terms.

 

1. Number of repayments;

 

2. Amount of repayments;

 

3. Frequency and timing of repayments;

 

4. Dates of repayments;

 

5. 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.

 

 

 

If it doesnt have these, its only use is as a paper dart.

Trouble is they have enclosed anothr piece of paper which they alledge is part of the same agreement which doees have those prescribed terms and conditions and they do refer to something being overleaf on the front signed bit which is worrying:eek:

[sunflower99]

Beachcomberhas an identical allegedcapital one cca t o mine on his thread,One thing i noticed is it possible that capital one could have inserted a different middle part to signed page?as i did notice tghat there are a couple of faint dark lines one is just above middle section with form information and the second one is just below middle portion just above my signature box! i was wondering if it might be a sign of tampering of middle but Beachcomber who also has these lines seems to think that they were just fold marks when form was posted,So maybe be just clutching at straws

[sunflower99]

i will now scan other paper which is alleged to be ts and cs on overleaf of this

[sunflower99]

[sunflower99]

At least that is just about readable!i did not fancy typeing all that out!lOL

Edited December 10, 2008 by sunflower99

[sunflower99]

The front of application form alludes to section 23! but unless it means sec 2 and 3! There is no section 23 when i look at this.

[noomill060]

Dude- the prescribed terms MUST be on the same document as your signature, not on another document called Terms and Conditions.

 

Heres a bit of info-

 

 

s.127 Enforcement orders in cases of infringement

“(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).” The omitted prescribed term being the signature of the debtor.

The Applicant draws the attention of the Court to Schedule 3 section 11 of the CCA 2006. Parliament has explicitly made it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007.

 

The document upon which they would rely upon to bring an enforcement action under s.61 of the Act does not contain the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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-

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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.

 

Where an agreement does not have the prescribed terms as stated above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also 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 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

Wilson and FCT judgments

Starting with the Judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION. In this case Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999 was void and unenforceable.

A key point at Para [26] in Sir Andrew Morritt’s judgment is this;

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

It is my contention that this is the case here with the agreements with the claimant, I also note that the House of Lords did not reject this idea and reaffirmed much of Sir Andrew Morritt’s judgment including this part of the ruling.

 

In addition, It is clear that Parliament considered the fact that where a creditor failed to comply with the requirements of ss 60 and 61 of the Consumer Credit Act 1974 they would stand to lose any monies loaned and that penalty was correct.

 

The Consumer Credit Act is a protective Act, implemented to give consumers a level of protection and set out minimum requirements for contracts between creditors and debtors, it does not say that where a credit fails to comply with the law and the debt becomes unenforceable they can cause damage to the debtor by defacing their credit file, no court has also held this to be the case either and I am sure Parliament would have stated in the Act if it was to be the case that the creditor had any such rights when in non compliance.

 

38. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

39. I would also like to refer to a written comment, which I feel is extremely relevant, from Francis Bennion the draftsman of the Consumer Credit Act 1974 and a very well respected barrister who specializes in Consumer Law. On his own website he states;

 

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.

 

This quote can be seen at http://www.francisbennion.com

Edited December 10, 2008 by noomill060

[ScabHunter]

The front of application form alludes to section 23! but unless it means sec 2 and 3! There is no section 23 when i look at this.

 

I suspect you have just hit the nail on the head sunflower99.

 

How can it refer to something overleaf which is not overleaf?

 

It looks like (Al) Capone have decided that producing unenforceable agreements is not good business, so they had better produce some enforceable ones, if you know what I mean.

 

I would love to see what the original looks like.

 

SH

[sunflower99]

Oh well my brains turned to mush looking at this CCA or application form or whatever crapital one calls it!im going to call it a day now and start worrying about it tommorrow.!

[sunflower99]

I suspect you have just hit the nail on the head sunflower99.

 

How can it refer to something overleaf which is not overleaf?

 

It looks like (Al) Capone have decided that producing unenforceable agreements is not good business, so they had better produce some enforceable ones, if you know what I mean.

 

I would love to see what the original looks like.

 

SH

Hi Scabhunter! Thanks for giving me some hope!If they take me to court in future i will make sure that i get advice on this forum how to cpr them for original!