Cap One CCA/DPA Advice

[Myra]

I wonder if you kind guys and gals out there would help me with what to do next on OH’s behalf.

 

Sent DPA/SAR request to Cap 1 and received the ‘credit card agreement’ along with the ‘terms of cap one credit card agreement’ and ‘copy of agreement’:

 

Cap One Copy of Agreement.pdf (2.31 MB, 0 views)

Capital One Agreement.pdf (6.19 MB, 0 views)

Terms of Cap One Credit Card Agreement.pdf (651.9 KB, 0 views)

 

I then sent a CCA request to them and have received the following bog standard letter and same ‘terms of cap one credit card agreement’ and ‘copy of agreement’ as above.

 

Cap One Ltr.pdf (750.3 KB, 0 views)

 

Presumably now they are in default of the CCA request I can put the account in dispute.

 

However what I ask is:

 

Is the signed Credit Card Agreement enforceable?

 

Do I send the default letter as it stands or amend it as necessary as I have a copy of the signed agreement from DPA request?

 

As he has paid off more than he has borrowed apart from about £500 which is counteracted by ‘unfair charges’ (the rest of the balance made up of interest) should I add to the default letter that he would like the balance wiped to zero or attach another letter or await response to CCA default letter first before I take matters further?

 

I appreciate the is probably the start of a very long road but I would welcome your advice and input especially as I originally got it the wrong way round by DPA/SAR-ing first and then CCA-ing!

 

Thanks in advance.

 

Myra

 

 

 

 

Cap 1 Loan in default of SAR/CCA request

MBNA received SAR but in default of CCA request

Barclaycard received SAR (no agreement) in default of CCA request

NatWest enforceable agreement but ongoing battle with incomplete info regarding SAR request – ICO informed.

Cap One Copy of Agreement.pdf

Cap One Ltr.pdf

Capital One Agreement.pdf

Terms of Cap One Credit Card Agreement.pdf

[cerberusalert]

What they have sent is an application form (it cleary states such in the signature box). It doesn't contain any of the prescribed terms within the four corners of the document i.e., %APR, credit limit, repayment terms therefore it is unenforceable.

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form 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

 

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

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

[Myra]

Hi Cerberusalert

 

Thank you for your quick response. Unfortunately I might have misled you in the titles of the documents.

 

The Capital One Agreement (the application form) was received only via the SAR request and not via the CCA request. So in effect does the above letter still stand?

 

"In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974."

 

Myra

[cerberusalert]

They are both application forms so they don't fullfill your requirements so the letter above will still apply.

[Myra]

Oh, I didn't realise that. Thank you for enlightening me.