Capital one no cca, what do I do now?

[blackntan]

 

 

 

 

I wrote to capital one for a cca. They sent all of the above.

 

As far as I can see, this is the current terms and conditions, some information on the present state of the account, nothing refering to the original agreement or even an application form.

 

I have since replied to them, stating that I thought this was not an enforcable cca. Today, I recieved another letter from them that is simply repeating the previous letters content.

 

Does anyone have any ideas as to what I should do now?

 

Many thanks all.

[fedup74]

When was it taken out? The default charges are £12- before 2006 they should be higher. Has what they sent you got your signature on or is it all blank?

[blackntan]

I can't remember when it was taken out maybe 2005/2006 I think.

They don't seem to know either.

 

The cca they have sent is compltely blank - no name,address,date or anything like that. It states the current terms and conditions so it can't be a true copy of the one I actualy signed.

[fedup74]

You could try sending this letter explaining why the account is in dispute. That is a load of rubbish what they have sent- they could write to anybody and say you owe us money here is a copy of what your agreement would look like. Hang fire and see if anybody else has a better letter though. Good luck:)

 

 

 

Dear Sir/Madam

Re: Account number: xxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE

Thank you for sending me what you have confirmed to be a true copy of the credit agreement that exist in relation to this account. As you have sent this document in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

The document that you have supplied does not constitute a legally binding regulated agreement between us and is in breach of Section 61 of the Consumer Credit Act 1974 and is therefore unenforceable by virtue of Section 127 of the act.I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

 

I do not and will not acknowledge this alleged debt. Furthermore, I dispute the legality of the debt until such a time as you can produce a satisfactory consumer credit agreement.

 

Furthermore, you are advised that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a properly executed credit agreement is a very clear dispute and therefore the following applies:

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.

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

I also requested that you remove any default registered with any credit reference agencies against this account as you are not permitted to default a disputed account. I further request that you confirm to me in writing that you have complied with my request. Failure do so may result in legal proceedings being taken against you to enforce the removal of this default and at such time you will need to explain why you have issued a default on an account that is not regulated under the consumer credit act.

 

The Data Protection Act

 

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 you are advised that you are not entitled to refer this account to any third party and this includes but is not limited to any debt collection agency and credit reference agency.

 

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.

 

I look forward to your reply regarding this matter.

 

Yours faithfully

[blackntan]

Thanks for the reply.

 

I have already sent something similar and was just sent another copy of the letter I already have, uploaded here. It is as if they did not read my letter at all.

[fedup74]

No they won't. If they don't receive a payment the threatogram machine just spews out another letter. At least you have evidence of your valid reason for the account being in dispute. They are just shooting themselves in the foot by further threatening you and demanding payment while there is a clear dispute going on. You could always complain to the OFT under CPUT rules. I have a letter if you wanted to do that.

[blackntan]

Thanks.

 

Can you put the letter up here, I might give that a try.

 

They just don't seem to read any thing you send them.

[42man]

Or you could send this one

 

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 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms and my signature means that a court would be prevented from enforcing it under s127(3)"

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.

[fedup74]

Here is the OFT complaint letter. The OFT don't look into an individual's complaint but if they have more complaints they have to look into their practice. I would send the letter off 42man, if you still get no joy complain to the OFT and TS.

 

 

 

Dear Sir/Madam

Consumer Protection from Unfair Trading Regulations 2008(CPUT)

Formal Complaint against ***************************

I am writing to complain under the above CPUT regalations. I am receiving letters and telephone calls from ******* in respect of a purpoted debt which I understand is governed by the Consumer Credit Act 1974.

In accordance with the Consumer Credit Act I asked ******* to supply me with a true copy of the Consumer Credit Agreement. They have failed to do so. Although I pointed this out to *********** they have failed to acknowledge this and continue to contact me and harass me with threats of action.

Clearly they are entitled to bring a legal action if they so wish. However, they have not done so and appear instead to be relying upon a campaign of systematic contact with me, accompanied by threats.

I consider that ******* are operating an unfair commercial practice and it is for this reason that I am sending you this complaint.

I enclose samples of the letters which they have been sending to me and letters I have sent to them.

I would be grateful if you could acknowledge this complaint and let me know what procedures you now intend to follow and what your targets for action are.

Yours Faithfully

[blackntan]

Thank you for your help.

 

I am trying to put together a reply along the lines of your suggestions.

 

Can you give me any advise about the information that can be omitted from a cca copy. In a further letter from Capital One they have stated.

 

“In addition, your personal details, the signature box, signature and date of signature have been omitted from the copy provided, as permitted under regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983.”

 

Can they really do this? It seems to suggest that they can just send a blank cca with no personal details. How can this be a true copy?

 

 

[blackntan]

Any one any ideas about the blank cca sent by Capital one?

[web2dude]

If you send the letter highlighted above, you have done all you need to.

 

State that you now consider the matter closed and that you will not be responding further to them and you consider the matter closed unless they provide the true agreement.

 

Basically, Cap One can now only take you to court to enforce the agreement as they have not provided the relevant info. They will threaten legal action, but won't take it as it looks as though they have not executed any of the agreements properly and they don't want any test cases against them. You can try the letter below as an alternative:

 

Your Ref: [Enter ref here]

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

Dear Sir/Madam

 

Thank you for your letter of [enter date], the contents of which have been noted.

 

Having taken the time to look over the documents supplied in response to my statutory request made under the Consumer Credit Act 1974, I have the following concerns:

On [enter CCA request date] I wrote requesting that you supply me with a true copy of the executed credit agreement for this account. In response to this request I was supplied a the document which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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

 

127(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).

 

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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection. The OFT guidance 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

In addition a full statement of this account should have been sent to me detailing all debits and credits to the account. This is my right under section 77(1) of the Consumer Credit Act 1974. The act is very clear about what that statement should include and therefore you have failed to discharge your responsibilities.

What I Require

 

Firstly, 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

I require you to produce a compliant statement of account showing all debits and credits, including all charges applied to this account, since the account was opened.

 

Please note you may also consider this letter as 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.

 

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 not respond within 14 days I expect that this means you agree to remove all such data.

Yours faithfully

(Print, don't sign) The easiest way of getting around this is to re-print the letter but where you will sign add '----------x----------' in the space. Then print it and sign

[cadencealex]

subbing