Could someone browse this, to help, please? Capital One/CABOT CCA Request Response

[TadThomas]

Hi

 

I'm not sure if this response is sufficient, or not. The tiny 'credit card account agreement' typing at the bottom of the page is almost illegible, and was accompanied by a poorly copied standard, unsigned, description of a credit agreement.

 

Is this thing that I have signed an actual agreement, as it's headed 'Easy Application Form'?

 

Capital One sold the debt to CABOT in January. I made the request for this information on the 27th April, they acknowledged receipt of the request on the 29th. They wrote to me twice to delay the response (CABOT couldn't retrieve the information from Capital One sooner) and finally sent a full statement of my account and the attached two pages, on 28th May - almost a month later.

 

I was 63 (Aug 02) when they allowed me this card: unemployed, and then retired at 65 (Jan 04), soon after they increased the limit of the card from £200 to £600 in June 2004 and £1200 in March of 2005, at which time I was 66 and had no way of repaying it. But, yes, I used it. I was allowed to increase the limit to £1200, even though the account was already over it's limit at the time (by £64). I now have an arrangement to pay them £2 per month, but from seeing the state of the agreement, I wonder if I could find a way to challenge it. They are threatening to take this to court, but they'll never get more than £2 per month.

 

Any ideas would be most appreciated.

 

I hope these attachments work:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CapitalOne5634AcctAgreement.jpg

 

http://i719.photobucket.com/albums/ww200/runmonkey/CapitalOne5634AcctAgreement2.jpg

Edited June 10, 2009 by TadThomas

[IdaInFife]

If these are two seperate pages then its not suffice,

 

you should send them:

 

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

 

 

 

have you read this?

 

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

 

Ida x

[TadThomas]

Thanks Ida.

 

Yes, they are separate sheets of paper. One of which seems to have no date attached to it, but a '2003' written in the corner, which is later than the signature date. I'll send your letter off and see what happens.

 

Thanks again.

Edited June 11, 2009 by TadThomas

[TadThomas]

Well, here's the response I received to that last letter. It's quite confusing to me.

 

I have read somewhere on here that the terms and conditions should be contained within 'the four corners' of the document? It also refers to the Consumer Credit (Agreement) Regulations 1983, which, she claims, negates any argument regarding the form and content?

 

Could someone help me formulate a response, please?

 

They keep saying that the signature form doesn't have to include all the Terms and Conditions, so long as the form refers to another. They have also refused to comment on the fact that the copy was illegible (so they may well have a legible copy and my copy was just bad).

 

Also, I am finding that the banks are using CCA 1974 against me, when requesting a signed copy. So, I have requested things under Civil Procedures. Can anyone suggest a sure fire way of requesting this document, as using CCA 1974 seems pretty messy and wastes time?

 

Thanks a lot.

 

I've attached my letter to CABOT, and their response.

http://i719.photobucket.com/albums/ww200/runmonkey/Cabot050609.jpg

http://i719.photobucket.com/albums/ww200/runmonkey/Cabot050609Page2.jpg

 

Response:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CabotResponse180609.jpg

[IdaInFife]

cpr route on bottom of my post at number 2

 

ida x

[TadThomas]

okie. will do tomorrow. thanks ida, much appreciated.

[TadThomas]

Hi. Well, I've just received this through the post.

 

http://i719.photobucket.com/albums/ww200/runmonkey/LatestAgreementfromCreditSolutionsB.jpg

 

To clarify this, I have two accounts with Capital One. I'll call them Account 1 and Account 2. Account 1 has £1200 outstanding and Account 2 has £500. Both are credit cards. Account 1 has been bought by Cabot. Account 2 is being collected by Credit Solutions.

 

I made a CCA1974 request for Account 1, and Cabot sent me an illegible copy of the agreement, so I wrote back and asked for a clearer copy. (The copy of the agreement is linked at #4 above along with my response)

 

Today I receive the application form for Account 1, but from Credit Solutions (Account 2). Obviously, Credit Solutions retrieved the wrong form from Capital One, without realising that it has the wrong account number on it. And, therefore, so has Cabot sent me the wrong application form. Also, Credit Solutions didn't send any of the other information that they are required to do, even though I didn't request it from them.

 

This seems like a perfect time to NOT tell them about it, I think. One of the forms is illegible, and perhaps they think I wouldn't have noticed the wrong account number at the top of the page. How devious! What a bunch of goons!

 

So, I'd only like to know - are these application forms 'properly executed': as they do refer to a document separate to the application form? CCA1974 says that you can refer to a separate document.

 

Also, what would you do now, in this situation? Any ideas? After all, the aim has to be to get them to back down completely, and stop registering things on credit files.

[IdaInFife]

hiya,

 

the application form is unenforceable anyway.

 

i would not let them know its the wrong account just that they have replied to your letter re account 2

[TadThomas]

***ALTERED POST***

 

This post is concerned with Account 1 held with CABOT (now).

 

These were sent to Cap1 (Credit Solutions) in relation to Account 2:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CapOne41240609Page1Blank.jpg

http://i719.photobucket.com/albums/ww200/runmonkey/CapOne41240609Page2Blank.jpg

 

It is relevant to this post, as it concerns a mix up with the agreements between the two accounts. Capital One now know that I have noticed their confusion, and that they've sent the wrong copy application forms out to me and to the company who now own Account 1 - CABOT, and the company who now collect for Capital One for Account 2 - Credit Solutions.

Edited June 27, 2009 by TadThomas

[IdaInFife]

can you clarify, have you sent a cca 1974 request or a cpr request?

#

ida x

[TadThomas]

***ALTERED POST***

 

Well, for both accounts I used the CCA1974 template, from here.

 

For Account 1 I used a slightly moulded version of your template at #4, above. It mentions the CPR, because I confused it with Account 2 stuff for a minute. The letter I sent to Cap1 in relation to Account 1:

 

(http://i719.photobucket.com/albums/ww200/runmonkey/Cabot050609.jpg)

 

They responded with:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CabotResponse180609.jpg

 

In addition: they haven't responded to a request under CPR (Civil Procedure Rules) prolly coz I forgot to make one formally. I just loosely mentioned it in the letter heading, above. (I honestly thought I'd done it separately. DUH!)

 

Ah well, it may be worth me just sending a Subject Access Request (Data Protection Act) for this now. Just so there's no confusion about what information they actually hold.

 

But, I'll wait til you respond, just to get a second opinion, first.

 

I just can't trust myself.

 

Thanks.

Edited June 27, 2009 by TadThomas

[IdaInFife]

you could send:

 

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

 

 

or go down the cpr route

 

ida x

[TadThomas]

>>

Edited June 27, 2009 by TadThomas

[TadThomas]

you could send:

 

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

 

 

or go down the cpr route

 

ida x

 

Hi Ida, I sent that response to them on the 5th June. I altered the template and accidentally mentioned the CPR in the letter heading, as I thought that I'd also requested info under CPR, but haven't. They responded with:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CabotResponse180609.jpg

 

That is the situation regarding Account 1, to 28th June.

 

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

 

 

For Account 2, I've sent this, which mentions the confusion between the documents:

 

http://i719.photobucket.com/albums/ww200/runmonkey/CapOne41240609Page1Blank.jpg

http://i719.photobucket.com/albums/ww200/runmonkey/CapOne41240609Page2Blank.jpg

 

That's the situation with Account 2 to 28th June.

 

 

 

Phew! :oops:

Edited June 27, 2009 by TadThomas
Confustion between two accounts, Capital One, Cabot and Credit Solutions and someone with a short attention span - me!

[IdaInFife]

to be honest it'll just be a game of ping pong, you know what they have sent is not enforceable and they say they have.

 

it may be time for you to try the cpr route to see if they really have the agreement

 

ida x

[TadThomas]

Has anybody read anything about anyone getting their Capital One agreement actually declared unenforceable at court and how they did it?

 

I really want to get these credit file entries removed, and I don't think I'll be able to do this without a judge declaring them unenforceable, or without using case histories to convince Cabot/Capital One to get it done.

 

CPR says that I can't formally request any documents from the 'other side' (creditors), but a judge can order they provide it if I apply to the court. I don't know if this would have to be during the 'allocation' stage, or if I can get them to supply it informally, or by some other means?

 

Now that my approach is to dispute the debt, and to get the credit file entries removed - do I have to start conversing with both Capital One - on the file entry, and Cabot on the debt (now that Cabot seem to own the debt)?

Edited June 29, 2009 by TadThomas
Change of mind.