OHs CAP ONEcard - Can i complain re no cca response/acknowledgement?

[mysticpols06]

The second sheet headed credit agreement has info all about using data for credit searches etc. The second sheet has info headed 'these terms are taken from clauses 8, 16 & 23 of the terms and conditions that you sign with us' but it doesn't seem to have everything i was under the impression that it should if that makes any sense -

[MAGDA]

Hi Mystic, does it say anything on the signature page referring to the second page, such as t&c's and conditions of use overleaf, something along those lines? The first page (signature doc) obviously doesn't have the prescribed terms, but it is whether or not the two were connected in some way, i.e., page two was on the reverse of page one, which seems unlikely as it was an 'application/agreement' that was sealed and returned in the post by the look of it. Magda

[mysticpols06]

"does it say anything on the signature page referring to the second page, such as t&c's and conditions of use overleaf"

Hi Magda - Thanks for posting. Only thing like that refers to use of info - please see below hunny! Have just re-read the forms and they def look like application more than agreement. Page one states: "Please issue to me a cap one cr card & pin. I confirm that all the info i have given is correct & true. I understand that this info will be checked with fraud prev' agencies blah blah...I authorise cap one to search the files of any cred ref agency for my application & to help you manage my acc. The cred ref agencies will record details of cap one search & your application blah blah may already be linked to records relating to one or more peeps with whom you have financial association. We may also add to your record with cr ref ag' how you conduct your cap one acc (incl defaults). Blah blah (all regarding search/cred ref agency record.

"I have read the T & C's setting out the agreement with cap one and, if my application is accepted, i agree to be bound by these T & C's, as amended from time to time. I am over 18 yrs of age.

"Credit scoring. blah blah.

"Your info & marketing. Important: Please read "use of information" overleaf (section23 of the agreement) which sets out how your info will be used. By signing this application you agree that info about you may be used like this regardless of whether your application is accepted blah blah.

 

Page 2 states: "These terms are taken from clauses 8, 10 & 23 of the T & C's that you sign with us". & has 3 sections. "1) Monthly statement 2) Financial & related particulars ("we will set and notify you of the cr limit of your acc etc etc blah blah & 3)Use of information."

 

The ref number of the acc has been handwritten at the top of page one with Links ref & on the side the date of 27/04/2009 with a ref (presumably when the paperwork was found & passed on??) dunno - def not sure on this one - sorry not much more help with explaining it any clearer hun. Thanks again - am just trying to work out what to send em next! Mpols x

[MAGDA]

"does it say anything on the signature page referring to the second page, such as t&c's and conditions of use overleaf"

Hi Magda - Thanks for posting. Only thing like that refers to use of info - please see below hunny! Have just re-read the forms and they def look like application more than agreement. Page one states: "Please issue to me a cap one cr card & pin. I confirm that all the info i have given is correct & true. I understand that this info will be checked with fraud prev' agencies blah blah...I authorise cap one to search the files of any cred ref agency for my application & to help you manage my acc. The cred ref agencies will record details of cap one search & your application blah blah may already be linked to records relating to one or more peeps with whom you have financial association. We may also add to your record with cr ref ag' how you conduct your cap one acc (incl defaults). Blah blah (all regarding search/cred ref agency record.

"I have read the T & C's setting out the agreement with cap one and, if my application is accepted, i agree to be bound by these T & C's, as amended from time to time. I am over 18 yrs of age.

"Credit scoring. blah blah.

"Your info & marketing. Important: Please read "use of information" overleaf (section23 of the agreement) which sets out how your info will be used. By signing this application you agree that info about you may be used like this regardless of whether your application is accepted blah blah.

 

Page 2 states: "These terms are taken from clauses 8, 10 & 23 of the T & C's that you sign with us". & has 3 sections. "1) Monthly statement 2) Financial & related particulars ("we will set and notify you of the cr limit of your acc etc etc blah blah & 3)Use of information."

 

The ref number of the acc has been handwritten at the top of page one with Links ref & on the side the date of 27/04/2009 with a ref (presumably when the paperwork was found & passed on??) dunno - def not sure on this one - sorry not much more help with explaining it any clearer hun. Thanks again - am just trying to work out what to send em next! Mpols x

 

 

Hi Mystic, I would say that isn't enforceable then, because the prescribed terms don't seem to have been within the signature document, and it's whether they can prove they were, which is doubtful. It's also good to get other opinions on this as well, and would be a good idea to post the forms up on the main Agreement thread:

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html?highlight=magda and see what others make of it. The next step then is usually to send a letter stating that the account is in dispute. Good luck with this, I have my own battles with Link and I know exactly what they are like. Magda

[mysticpols06]

Thanks sincerely for your comments hun - will do! good luck. Mpols x

[inline10]

Hi everyone, I really need your help!

 

Two years ago Lowell's Red and Hamptons (who are all the same company) started sending letters regarding two Capital One accounts I have, both of which were paid in full by the insurance when I fell ill. Capital One claim they have not been paid. Axa claim they have.

 

Anyway to cut a very long saga short.... I wrote to lowells asking for Subject Access Request on both accounts. They sent me a copy of everything except the credit agreemeent.

 

I have now had a letter from Lowells stating

 

"We refer to your recent request for a copy of the original credit agreement for this account.

 

After liasing with Capital One in an effort to obtain this document we have been advised that it is no longer available due to the length of time since the account was opened by you.

 

At this time we have closed our file and will not make any further contact with you concerning payment against this account unless a copy of the agreement is received at some point in the future from Capital One.

 

If you have any queries regarding the above, please contact us on 0113 308 6044."

 

My question is....what do I do now, these two debts are sat on my credit reference file and they won't remove them.

 

Is there any course of action I can take at all?

 

Many thanks for reading my rambling, but this has been going on for 2 years.

[middenmess]

Hi Inline10

 

You will get responses to your query if you start your own thread in the appropriate area.

 

If you received 'everything' back with your SAR,then you will have your statements showing the payments that the insurance company made every month which will prove that the account was paid,will they not?

[middenmess]

Hi Mystic,

 

'Agreement' is too small to read but doesn't appear to be compliant with the requirements of having the prescribed terms embodied in the document.

 

Link write to say that they will close their file in 8 weeks if they do not hear from you----which file?

 

Have you any unlawful charges on this account that you can reclaim?

 

Are Link now the owners of this account or just working on behalf of Cap 1?

[silverfox1961]

Hi Mpols,

I'm in agreement with Middenmess.

The essential T's & C's have to be within the 4 corners of the agreement although I have been informed that it doesn't have to be on the signature page.

 

E.G (my thoughts) you could have a couple of pages. page 1 has the terms and page 2 has the sigs but there has to be a clear link between the two and I don't think yours has. I could be wrong so don't take this as gospel.

 

fox

[silverfox1961]

Hi everyone, I really need your help!

 

Two years ago Lowell's Red and Hamptons (who are all the same company) started sending letters regarding two Capital One accounts I have, both of which were paid in full by the insurance when I fell ill. Capital One claim they have not been paid. Axa claim they have.

 

Anyway to cut a very long saga short.... I wrote to lowells asking for Subject Access Request on both accounts. They sent me a copy of everything except the credit agreemeent.

 

I have now had a letter from Lowells stating

 

"We refer to your recent request for a copy of the original credit agreement for this account.

 

After liasing with Capital One in an effort to obtain this document we have been advised that it is no longer available due to the length of time since the account was opened by you.

 

At this time we have closed our file and will not make any further contact with you concerning payment against this account unless a copy of the agreement is received at some point in the future from Capital One.

 

If you have any queries regarding the above, please contact us on 0113 308 6044."

 

My question is....what do I do now, these two debts are sat on my credit reference file and they won't remove them.

 

Is there any course of action I can take at all?

 

Many thanks for reading my rambling, but this has been going on for 2 years.

 

Hi Online 10,

As advised, you should start your own thread but as you're here:)

 

This is the bye bye letter from the Leeds losers but don't be surprised if they sell this debt on. If they do we can deal with the new DCA quite easily.

Your defaults are another matter. They won't willingly remove them. If they have no agreement, they don't have your permission to mark your credit file but it doesn't stop them.

 

The only way I have seen so far is to take them to court to get them to remove the defaults.

 

fox

[johnerog]

Hi mystic

Just subbing realy, but I agree with the rest, I can't see a credit limit on there

[angry cat]

What a hoot!

 

Have Link Financial really bought this LEMON from CapOne?

 

AC

[vint1954]

Thanks sincerely for your comments hun - will do! good luck. Mpols x

Hi Mystic,

 

The prescribed terms need to be within the 4 corners of the signature document. That is face and reverse of the same sheet. (one sheet of paper)

 

The prescribed terms appear to be there on the second sheet.

 

1. Interest rate, not the APR

 

2. Amount of repayments.

 

3. Amount of credit, or a reference to it. They usually say that your credit limit will be notified to you. I am not convinced on this point, that notification is acceptable. The CCA1974 actually says ammount of credit. My thoughts, for what they are worth, is that they should put the initial limit on the agreement.

 

Lastly is the cancellation rights. This although not a prescribed term, could leave the agreement unexecuted.

 

I would be inclined to go back to link with something like this, edited to your own dates:

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the signature page of an alleged agreement with unrelated Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

In relation to what constitutes a “true copy”, please read the details below. In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

This breach of the agreement by yourselves, can be demonstrated as follows:

 

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to further regulations regarding what may be omitted from these copies, these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument 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 thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable. I await a “True copy” of my agreement and would remind you again that, whilst the request has not been complied with, the default continues.

Below are the relevant main points of the Law and OFT regulations while the account is in dispute and you remain in default.

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You may not add further interest or any charges to the account
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

I am now granting to you a further 7 days to produce a true copy of any executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable reconstructed Application form with added Terms and Conditions that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

 

Yours faithfully

 

.

[vint1954]

Have you had a default notice, termination notice or notice of assignment.

[inline10]

Hi Inline10

 

You will get responses to your query if you start your own thread in the appropriate area.

 

If you received 'everything' back with your SAR,then you will have your statements showing the payments that the insurance company made every month which will prove that the account was paid,will they not?

 

Hi, Thanks for the reply, I have started a new thread.

THe statements have the year of my illness missing!

[vint1954]

What a hoot!

 

Have Link Financial really bought this LEMON from CapOne?

 

AC

They don't seem to check. A game of numbers.

 

What's happened to the account status? All seem to have dropped. My e mail notifications seem to be about 6 hours behind.

 

Vint

[middenmess]

My e mail notifications seem to be about 6 hours behind.

 

Only 6 hours--I've only received 3 in 4 months!!!

[vint1954]

Site e mails?

[middenmess]

Site e mails?

 

Yep!!

 

No problem with PM's though.

[mysticpols06]

Evening everyone - THANKYOU sooo much for your prompt advice - will go through it all properly later this evening if poss or asap tommorrow as can't stay online tonight due to littl'un being poorly (she has idiopathic anaphylaxis & seems to randomly get ill - unfortunately she can get VERY ill very quickly sometimes so when she not 100% we have to watch her like a hawk!) - Sorry can't answer your q

[mysticpols06]

(oops- pressed wrong button lol) cant answer your queries straight away but bear with me and i will asap - i very much appreciate your help all of you - these are the main company i'm not looking forward to dealing with so much. Take care & thanks again, bye for now, Mpols x

[mysticpols06]

Morning peeps (& what a lovely sunny morning it is!) Sorry took so long to reply but babe was poorly.

Ok, Have gone though the paperwork quickly & noted the following with regards your questions:

22/08/08 - (cap one) "Notice of default" - "Because you have entered in to a long term repayment plan. If you cancel the plan in 28 days the default will be cancelled and you will have to make at least the min payments due under agreement plus any costs incurred & overdue balance outstanding plus any ppi will continue until date acc is terminated but no refund given (28 days from date of this letter). If don't cancel repayment plan then acc terminated & full balance outstanding to paid immediately plus any costs, cred ref agencies to be notified, & acc to be placed/sold to dca"

Ok, i don't know if that is a true default notice but is the only thing like that which was received. Reading it back now (that i am not having mass panic & anxiety over all the debt before found cag) its very contradictory! Seems like damned if you do and damned if you dont. It's like "Hmmm, we get in to trouble through no fault of our own, we instantly contact creditors etc to explain situ & arrange lower payments rather than none at all, then get bombarded with confusing letters saying ok peeps you CAN pay us less while we lull you into a false sense of security, but we will terminate your acc & make you out to be irresponsible wont pay eejits regardless, or you dont pay at all & we damn you to hell either, way you are the lowest of the low cos you owe us cash and we will make your life hell for eternity!"

(something like that hahahah)

Anyway. Thats the default sorted.

With regard the noa we had letter dated 16/02/09 stating:" Link is the current owner of the outstanding balance owed to you re cap one acc" with a letter from Cap one stating" I am writing to inform you that cap one sold your acc to link on 19/12.08".

 

We didnt get anything else until a postcard from link "urging" us to ring Helen on their number (which we didn't) and then the phone calls started and this thread began.

 

Hope this helps and thankyou sooo much again. Have already complained to oft and mp about these and now that we have their "Final response (prev' post) we will complain to some others. Thanks for letter draft overleaf. Will edit & get something ready to go tue (might pinch it for similar problems with Cabot!) Will post for comments when drafted.

 

Thanks again & take care, Mpols x

[angry cat]

Oh My God!

 

Link Financial really did buy the LEMON...or, so they claim?

 

Now, I wonder what sort of assignment this is;

equitable or, absolute? Methinks, probably the former.

 

I would be asking Link for documentary evidence showing that they are legally entitled to pursue the alleged debt and that it was legally assigned.

 

If you have not made a SAR to CapOne, I would suggest that you make one now;

a FULL SAR.

 

AC

[mysticpols06]

Hi Ac, thanks - i know how to sar cap one and was planning to get that done tue but do i need to pay a fee for what you suggested i ask for from link please? Haven't seen many of those type letters/templates so far. Daft eh! Dunno if any charges etc that shouldnt be there but will find out soon i guess. Is it right that i should sar cap one tho instead of link if link now app own it? Or will i have to sar them as well afterwards? I know from what i have seen from other threads that it is well worth the cash but sorry to say am not really in a position to keep paying tenners at the moment unfortunately. I will have a look at templates see what i can find, cheers luv! Mpols x

PS. What do you mean by equitable or absolute assignment please? All link keep banging on about is how the acc is apparently a "chose in action" or something.

Thanks again. xx

Edited August 30, 2009 by mysticpols06
Needed to add ps :-)

[mysticpols06]

bump )