CapitalOne CPR 31.16 Refusal

[1mansquest]

Received a letter from Ellie Renshaw again advising they don't consider my CPR 31.16 request to be valid, and will not supply any further documentary evidence of my agreement - they only sent the usual most recent terms and conditions without a signature. Haven't done a SAR as I get the impression they won't respond. If anyone has a view on the most appropriate action to take, I'd appreciate any help. Letter follows:

 

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[Goldlady]

So they have not provided your agreement, even though they say they have. I don't think the most recent t&cs really cut the mustard.

 

I would be tempted to ignore them until (or rather IF with a capital 'I') they do issue proceedings and then ask them again for a copy of the agreement. It seems 99.9% likely that they have nothing or they would have sent you it. They couldn't find mine:D

[the_shadow]

I'm awaiting that very same letter myself, got the first refusal last week and have sent out the second request....

 

Funny thing is they have already supplied "the agreement" in the SAR, looks enforceable if the back page was really the back page at application time...

 

Strange they wont back up that piece of paper as the executed agreement:D when mentioning relying on it in a court of law.

 

If you decide to do a SAR, post up the app you get and see if the t&c are the same on the back of your "executed agreement";)

[the_shadow]

Hi 1mansquest, I've posted links to your letter on the main CPR thread to see if the legal eagles can advise what crapital 1 actually mean by that letter:)

 

Here

 

Hope you dont mind

PmW

[conar686]

Having some experience of Ms R*nshaw (not in the biblical sense of course) she is very good at stone walling and prevarication when it comes to agreements.

 

You will get to the point where once you get her final response she will politely refer you to the FOS

 

I think though a response that included reference to CPR 16.7.3 may blow her response re admissibility of agreements out of the water.

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

A tack I've taken recently with her was to send her the agreement that was sent to me inviting her to highlight where the prescribed terms are and return.

[conar686]

Her reference to CPR 48. 1 is bulwarks

 

PART 48 - COSTS – SPECIAL CASES

 

 

48.1

 

(1) This paragraph applies where a person applies –

(a) for an order under –

(i) section 33 of the Supreme Court Act 19811; or

(ii) section 52 of the County Courts Act 19842,

(which give the court powers exercisable before commencement of proceedings); or

(b) for an order under –

(i) section 34 of the Supreme Court Act 19813; or

(ii) section 53 of the County Courts Act 19844,

(which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc.).

(2) The general rule is that the court will award the person against whom the order is sought his costs –

(a) of the application; and

(b) of complying with any order made on the application.

(3) The court may however make a different order, having regard to all the circumstances, including –

(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) whether the parties to the application have complied with any relevant pre-action protocol.

[militantconsumer]

Subbing with interest.

 

The way I read this, Cap One are suggesting that they think your CPR request relates to a proposed case about whether you are entitled to a copy your agreement (possibly under CCA 1974).

 

Of course, they are right that in such a case, being provided with a copy of your agreement would not help you determine whether you are entitled to a copy of it!

 

However, your case isn't about that. Your case is about a declaration of enforceability, it is about illegally charged PPI premiums, it is about illegal sharing of data with credit reference agencies, or whatever.

 

In this type of case, being provided with a copy of your credit agreement WILL be necessary in order to avoid your case being adversely affected.

 

I wonder if the best course of action would be to write again, politely putting them straight on this "misunderstanding".

 

Presumably that would be the reasonable thing to do, particularly with reference to avoiding costs.

 

I await with interests the responses from the more experienced posters on the other thread.

[dpick]

Hi the way I got past this clap trap with C1 was to use a full data sar which as the request is made under DPA has to include a copy of the signed agreement not the rubbish the can supply under s78 of the CCA.

 

dpick

[militantconsumer]

From the main CPR thread

 

What a load of nonsense

 

They would be obliged under standard disclosure to disclose otherwise they would NOT be able to rely upon the credit agreement

 

Secondly, my reply would be that it has come to my attention that certain credit agreements isssued at around the time i entered into my agreement with cap one were missing certain information which would not have afforded me the statutory information that the CCA 1974 requires

 

at the time of entry into credit i was a consumer who was not well versed with consumer law, however i have been advised of the form and content requirements of an agreement and the consequences of non compliance.

 

therefore, i require a copy of the agreement i entered into with your company to place it before solicitors to have it assessed for compliance with the Consumer Credit Act 1974.

 

I have concerns by your response so i must ask you to confirm, and would point out that you are obliged to answer this question, do you still hold a complete copy of my credit agreement that i signed with your organisation?

 

If you do then please advise and if you do not then i require confirmation of this point.

 

 

They really are dumbasses:)

[1mansquest]

Thanks to all contributors.

 

I think Ellie’s tactic is one of ‘confuse the punter with jargon’. Yet, given my persistent reference to the acts of law in all communications, she's definitely pushing her luck. I suspect it’s a bluff to stop me doing the SAR and specifically, from asking for a copy of the original agreement.

 

What’s the best course of action?

 

I could do the SAR, but is it in my interest to do so? I could quite happily sit and wait for them to take me to court and tell the judge they refused to provide me with a copy of the original agreement, which allows me to make an informed decision and if necessary, come to a reasonable settlement with C1 without wasting the courts time. Or, I could SAR them and wait and see if they respond.

 

Either way, Ellie’s tactic is pointless, as I can’t personally be held responsible for ‘not doing the right thing’. Of course, I’d rather know what’s ‘really’ happening with my CCA and avoid the inevitable worry that accompanies this whole process.

So my decision is to issue the SAR.

 

I’ll post the result in due course.

 

1MansQuest

Edited March 15, 2009 by 1mansquest

[the_shadow]

So my decision is to issue the SAR.

 

I’ll post the result in due course.

 

1MansQuest

 

Will look forward to seeing what they send you.. question is can you guarantee what comes back as an agreement in a SAR is the actual agreement?

 

I have no idea if the agreement they sent back in the SAR is the one I signed offline and returned but they dont seem to want to commit in a reply to my CPR that this is the agreement they would use in a court of law.

[militantconsumer]

The problem with the SAR approach is that they could simply not include the signed CCA in the pack. Let's not forget that the maximum fine under Data Protection for non compliance is £5,000 - and that's for serious grand scale abuses of consumer data, not just 'forgetting' to include one document that was stored on microfiche in one customer's massive pack on information.

 

And if Cap One or a DCA later took you to court and produced the signed CCA it is no good saying - "well, they didn't supply it in my SAR" because that would hardly be relevant at that point.

 

Whereas with an N244 they either have to produce it or admit they don't have it. And they will be in real trouble if they tell the court they don't have a copy and then later start an action which uses that very same piece of paper as its main piece of evidence.

 

No harm in sending an SAR of course, I would simply be astonished if it produced the information that you want, and which they are trying to keep from you.

Edited March 15, 2009 by militantconsumer
Changed "Barclaycard" to "Cap One" - sorry, I must have been thinking of my friend's case!

[1mansquest]

OK, some very interesting points.

 

So if a S127 won't necessarily get you the agreement, a CPR 31.16 won't necessarily get you the agreement, and a S.A.R won't necessarily get you the agreement, what's the point in any of them?

 

I thought the S.A.R at the very least would force them to provide the document, particularly if I say "give me the original signed agreement and nothing else"!

 

Can someone please explain why N244 carries more clout and when I should do this? Not to mention how.

Edited March 15, 2009 by 1mansquest

[jonoh1]

I got the exact same letter last week. I sent them a SARS and requested the true credit agreement ect. All they sent was statements and phone logs. they omitted to mention the credit agreement. Sent them a reminder and another reminder. Nothing but a letter from Capquest saying court proceedings are imminent if I don`t respond within seven days.

 

All they have sent to my original request is an application form signed in 2004 with no prescribed terms and updated terms and conditions. This was before the sars request which they are now out of date on. Ihave had Debitas texting, ringing my mobile and landline sometimes seven or eight times in an hour. Ihave kept digital logs and recordings . Help...............

[militantconsumer]

..... a CPR 31.16 won't necessarily get you the agreement .....

Can someone please explain why N244 carries more clout and when I should do this? Not to mention how.

 

Have you read the 1st page of this thread:

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

This explains the why and how.

 

I think the CPR 31.16 may work, but if they ignore the letters it would be necessary to proceed to the next stage, i.e. the N244 request, which asks the court to order them to provide a copy or admit they don't have it.

 

I have never tried this (but I might soon). I am just going on PT's guide in the above link.

[militantconsumer]

PS. Forgot to mention that at least one person has a thread on CAG where an N244 has been issued (against Barclaycard):

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

[1mansquest]

O.K, I'm going for the N244, now prepared and ready to submit. I note that I have to sign and date. Putting my ultra-cautious hat on, I presume this form will not be forwarded to C1, signature included?

 

1MansQuest

[jonoh1]

Best of luck Manquest I will follow with interest. They have put me off that route with the last letter from them saying if I did they would go for substantial costs. Probably a bluff but put me off. Up to my neck with the bully boys from Capquest at the moment even though cap1 have still not informed me they have passed the account on.

 

Best of luck fingers crossed keep us updated via the forum, great thread

[militantconsumer]

If you do file the form, maybe you could develop a special new signature for the court process - that way, you'll recognise it if you ever see it again.

 

Smt has a court date now for the hearing.

[banker_rhymes_with]

Hello Folks!

 

Rumour has it that Ellie Renshaw doesn't actually exist.

 

It's just a name they use, the real Author is one of several people...the style of writing seems to vary too much for a start, and yet all are signed by a facsimile signature of Ellie. Even that is a Font I think and not a real copy of a real signature!

 

Will the real Ellie please step forward please?

 

Cheers,

BRW

[the_shadow]

Hello Folks!

 

Rumour has it that Ellie Renshaw doesn't actually exist.

 

It's just a name they use, the real Author is one of several people...the style of writing seems to vary too much for a start, and yet all are signed by a facsimile signature of Ellie. Even that is a Font I think and not a real copy of a real signature!

 

Will the real Ellie please step forward please?

 

Cheers,

BRW

 

Sorry to burst the bubble BRW but if you google her, click on the facebook entry, you'll need to sign in.. you can see she's real... amongst her "friends" is one Verity who I believe people also suspect not being real!

 

I'm not a stalker honest......

[banker_rhymes_with]

Hello pmw1971!

 

I'm not sure I'd take anything on facebook as being genuine! Especially if it has anything to do with the Debt Industry.

 

But at least if the Ellie creature ever gets dragged into Court for cross-examination, we may know what she is supposed to look like!

 

But, either way, she doesn't write all of the letters we see from CapitalOne, so the rumours could well be true that she does not actually exist.

 

Same goes for the Verity Billhook or whatever they call that one!

 

Cheers,

BRW