Capital One and CCA

[Lilly_22]

Sent request for CCA to capital one and received letter with T&Cs at the back with a 3 fold sheet. Also, Debitas keep on phoning and sending letters. I am attaching the latest here and would appreciate any guidance in this matter.

 

Thanks

CapOne.pdf

Debitas275.pdf

[Pinky69]

How old is the account?

[Lilly_22]

Not sure what you mean here. I got their credit card around 2002/3 and had been using it until Nov 2008. Does that help!

[lilly white]

Send You Have Failed Letter

 

Regards Lilly White

[silverfox1961]

Hi,

This is a good (IMHO) letter:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172071-letter-co-solicitors.html#post1856406

[Pinky69]

I asked the question becuase the Terms and Conditions they sent are post 2007 - they didn't exist when you got the card. There is no agreement of any kind, par for the course for CrapOne, and you can put the account in dispute.

[Lilly_22]

Sorry I have been away on a course. Don't exactly know but it is pre 2006.

[Lilly_22]

Thanks everyone for holding my hand. I sent the Account in Dispute letter as suggested and last week I received their response disputing my stand and asserting their's.

 

And, tail end of last week I received offer from CSL, not that it makes any difference as we are trying to survive on just one income.

 

Do I write (??) back to Cap one or go to Ombudsman!! What should I do!!

cap_d.pdf

cap_csl.pdf

[Lilly_22]

This week I received letter from CSL stating Final Warning and possible court action.

 

All that Cap one sent was tri-fold sheet of conditions and the their response to my Account in dispute lied outright.

 

What is my next step?

 

This is getting a little uncomfortable. URGENT advice needed.

cap_cslt.pdf

[debt4get]

this is where you have to be a bit brave and send the letter again saying they have not complied with your legal request and have sent only application form and as such the account is in dispute

[vint1954]

This week I received letter from CSL stating Final Warning and possible court action.

 

All that Cap one sent was tri-fold sheet of conditions and the their response to my Account in dispute lied outright.

 

What is my next step?

 

This is getting a little uncomfortable. URGENT advice needed.

Send this letter, Edited to suit your situation, to Cap one.

 

I write regarding continuing communication regarding the above account.

 

Further to my request dated xxxxxxxx 2009 under s78 of the consumer credit act, for a true copy of any credit agreement that you may hold, I have to date only received current terms and conditions.

 

Contrary to comments and letters from various Capital One staff, Capital One have not complied with the terms of CCA 1974 s78. A reconstruction does not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

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.”

 

 

Again at the risk of repeating myself, I refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

I am now granting to you a further 7 days to produce a True Copy of any executable agreement that you may hold.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 document, 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.

 

I look forward to your response.

 

Yours sincerely

 

 

Send this letter to DCA inserting your dates, with a copy of the above letter.

 

Dear sirs,

 

Ref account:

 

I refer to your letter of xxxxxxxxx 2009, received xxxxxxxxx 2009, requesting the full balance of the above account to be repaid. No debt to your client is acknowledged.

 

I am rather bemused to receive this letter from yourselves. On xxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. This account was placed in dispute on the xxxxxxxx 2009 and Capital One remain in default of supplying the required alleged agreement.

 

In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

 

Your attention is also drawn the Information Commissioners Office on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to Capital One under s10 of this act. You may wish to advise your client and remind yourselves of the implications of ignoring the Data Protection Act.

 

Should you or your client bring proceedings, they will be robustly defended, and the Court's attention drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

I suggest that you immediately return this account to Capital One to be resolved.

 

 

Yours sincerely

[vint1954]

This week I received letter from CSL stating Final Warning and possible court action.

 

All that Cap one sent was tri-fold sheet of conditions and the their response to my Account in dispute lied outright.

 

What is my next step?

 

This is getting a little uncomfortable. URGENT advice needed.

Don't Wory Lilly, Cap One have not complied in any shape or form.

 

Send the letters above, and await their responses.

 

They know how they should behave in a dispute. If no further letters come from them within 10 days of posting the above letters, then post on this thread and we will move it on. If they do respond, post letters on this thread.

[brokebutnotbeatn]

Stay strong Lilly 22 - uncomfortable is how they want you to feel so don't give them the satisfaction. You have done nothing wrong, they have. Send the letters above and stay firm and resolute. If they call refuse to answer their security questions, say written correspondence only and put the phone down; keep a script by the phone to read out if that helps so you don't appear, or feel, flustered.

[Lilly_22]

Well, Cap 1 have finally coughed up a CCA.

 

9th May 2009 - CCA request sent - they responded with trifold sheet of terms

 

27th June 2009 - A/C in dispute letter sent - A/C entered default on 29th May 2009 - they responded saying they have complied

 

6th Aug 2009 - sent another letter saying they jhave not complied

 

This week received CCA. Can someone be kind enough to have quick look at the pdf file and advise me as to whether it is enforceable and what to do next.

 

Thanks.

cap1_cca.pdf

[lilly white]

if i am right they are worried that you are going to take them to court.

 

boot on other foot,

 

ME THINKS 142 COULD WELL BE IN ORDER.

 

Regards lilly

[Pinky69]

It's their usual crap and there is something else about it - I have one exactly the same. It is in breach of the Companies Act 1985 because it doesn't have their address on it or the fact that it is a Limited Company. I am about to take them to court.

[vint1954]

Totally unenforcable. No prescribesd terms, heading is application certificate no Credit agreement.