Dispute with Capital One

[jet83]

Hi everyone.

I'm currently in dispute with cap1 regarding my account, I originaly requseted them to send the credit agreement to which they replied with the application form, with mine and there signatures on it but without the full terms and conditions, rate of interest and credit limit on it.

 

I then sent a letter stating that this was not sufficient to my request, to which they replied with sendig the ''Terms of your capital One Credit Card Agreement'', which has my name and address in it on the front, credit limit and rates of interest but no signatures or dates, they also stated in the letter,

''In accordance with section 78 of the consumer credit act 1974 and the 1983, this is your original agreement, and if any terms have been varied, then the copy agreement will include the updated tems. In addition, your personal details, 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) Regulation 1983''.#

 

I replied to them saying for the avoidence of doubt, if you are possession of such a document, but are unable to supply me with it please outline your reasons why you feel you are unable to supply it to me in your reply. i must remind you again whilst the request has not been complied with, the default continues.

 

Now they have replied with the followng.

 

''Thank you for writing back to me about your request for us provide you with a true copy of you credit agrement.

 

As I've already explained, in accordance with section 78 of the Consumer Credit Act 1974 and the Consumer Credit (Cancellation Notices and copy Documents) Regulations 1983, we've provided you with a copy of your original agreement, and if any terms have been varied, then copy agreement will include the updated trms. In addition, your personal details copy provided as permitted under regulation 3 of the Consumer Credit (cancellation Notices and Copy Documents)

Regulation 1983.

 

Your account status remains behind with payments and the balance currently due and payable is #####

 

It is important that you maintain payments as your account balance consists of transactions that you have made. Failure to do this may result in negative information being recorded on your credit file, which may affect your ability to gain credit in the future.

 

We will continue to pursue the outstanding debt and will defend any apllication you may wish to bring against us.

 

Financial regulations require me to advise you that this is my final response in relation to this matter. However, you now have the option to contact the fianancial omsbudsman service within six months from the date fo this letter. Their contact are in our complaints leaflet, which I have included with this letter.

 

Where do I go from here? Please help:confused:

[blueda]

Hi jet83, they are trying to make an unenfercable debt look enforcable, as for them saying this can harm your ability to get future credit, do you really want credit again ?. You have made it clear to them that the debt is unenforcable and can continue to withold payment if you wish, until they can produce a valid CCA, ( unlikely). You can also if you prefer offer them a reduced settlement as full and final payment.

[davey77]

Jet83, can you scan your agreement so folks can have a look (minus personal details).

 

What year is this from?

 

Have a look at my thread on Cap1. That should give you some pointers:

http://www.consumeractiongroup.co.uk/forum/legal-issues/171391-davey77-capital-one.html

 

Also this thread:

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

[jet83]

Hi blueda and davey77 thanks for replying. Its from 2003, I'll try and scan the agreement but bloody things playing up at the mo:rolleyes:

[emmaf01]

We'll take a look and give an opinion if you can photobucket it.

[jet83]

Hi emmaf01, I've managed to scan the documents and upload them but how do I increase the size of them for people to able to read as they are coming out to small when I press preview (I'm not brilliant with computers!)

[cerberusalert]

Upload them to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy and paste the URL back here.

[jet83]

[jet83]

[jet83]

[jet83]

Thanks for the help cerberusalert I got there eventualy:rolleyes:

[cerberusalert]

It's unenforceable & the T&Cs have no relationship to it, send them this;

 

Account Number:

 

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 the Application Form & 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 Application Form & 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.

 

This breach of the agreement 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 the 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 cancelable 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 dispute continues

 

Yours faithfully

Print name do not sign

[jet83]

but they stated in the letter I received off them today that it was their final response to the matter. should I still send the letter you suggested?

[cerberusalert]

Yes still send the letter, it shows them that you know what the regulations are with regards to what can be excluded under section 78 & also that you won't roll over and pay because they are bull$hitting you.

[jet83]

Ok thanks for all your help cerberusalert I'll get typing tomorrow. I guess this is when they start to get nasty from now on.

[cerberusalert]

They'll probably pass it on to Debitas their in-house collection team & when they get nowhere onto the Lowell Group, but without an enforceable CCA they can be dealt with easily enough.

[jet83]

what do you think the chances are of them coming up with the original agreement? surely if they had it they would have sent it me from when I first requested it, without all this messing about sending application forms and t&c's

[cerberusalert]

Crap1 are famous for not being able to produce an enforceable CCA from the period yours is from, that is why they are bull$hitting you so much in the hope that they can convince you it is enforceable.

[jet83]

Ok well lets hope for the best would be nice to screw them for a change:D

[jet83]

Hi, I've now received following letter this morning from their collections

 

Date 2/4/2009

 

Dear Mr #########

Capital One Bank - Account Number: ###########

 

Balance: £####

Credit limit: £#####

Overdue amount: £#####

 

Please make a payment to bring your account up-to date

 

You've missed a payment and your account is now overdue, If you've already brought your account up-to-date or have made a payment agreement with us-thank you. Please ignore this letter.

 

If not, you need to pay £##### straight away. to bring your account fully up-to-date, you also need to pay current minium payment.

 

Overlooking payments costs you money and is inconvenient for you

 

Whenever you miss a payment, pass less than the minimum amount or pay late:

 

- interest and late or failure to pay default sums may be added to your account.

-your credit facility is suspended, which means you're unable to use your card.

- your payment history recorded on your credit file.

 

And then some rubbish about them been there to help blah blah blah.

 

 

Yours sincerely,

 

Michael Woodburn

Vice President of Collections

 

Should I send them another letter?

[cerberusalert]

It's just standard pulp that their accounts department send out, ignore it.

[beachcomber60]

Just stand firm, they will get debitas onto you and send all sorts of threat-o-grams, golden rule with them is DO NOT SPEAK TO THEM BY PHONE.

 

Looking at the "agreement" they sent you sort of confirms that they have been doing a lot of cut & paste jobs to me and so many other CAGGERS.

[jet83]

Ok cheers cerberusalert.

Hi beachcomber60, I intend to stand firm I have had a hell of a lot of calls from cap1 but non recently, I guess that will change again shortly thanks for the advice.

Wonder how many people out there who have cap1 accounts have unenforceable agreements?

[beachcomber60]

By what I've seen, including mine & the OH about 95% ours date from 2004

[jet83]

They must love this site! serves them right if they don't follow the rule book:)