Capital One Sends Terms & Conditions for a CCA Request

strongbowhead · June 29, 2009

Just had a letter back from Capital One in reponse to a CCA request made and they have send back a letter saying the following:-

Thank you for your recent letter requesting copy documents for your account.

Please find enclosed a copy of your credit agreement as requested. In accordance with section 78 of the Consumer Credit Act 1974 and the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement, and if any terms have been varied, then the copy agreement will include updated terms. In addition, your personal details, the 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) Regulations 1983.

Your account is in default and the amount currently due and payable is xxxxxx

Under section 78 we are not required to provide a copy of the default notice and statement of default. However, we can confirm that a statement of default was issued on xxxxx 2008.

I trust this information will help you with your enquiries. If you need any further information, please contact me again

Our old friend Ellie Renshaw !!!!

Attached was a standard letter with my original credit limit typed in at the top right hand side and my account number underneath.

Heading - Terms of your Capital One Credit Card Agreement signed Stephanie Dufty and another leaflet saying Important information about your Capital One credit care. This is a copy of your agreement for you to keep.

Which letter do I send next to them as they have clearly failed in sending anything with my signature on ??

Thanks in advance

sunflower99 · June 29, 2009

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfill your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An unsigned credit agreement with no personal details on it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.[/font]

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until ??/??.2009 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office the time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit information industry.[/font]

I expect you to write to me confirming that the account has been closed and no further action will be taken.

I look forward to your reply.

Yours faithfully

sunflower99 · June 29, 2009

Account Number

Account In Dispute

Re; Barclaycards recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I am writing to say that i made a request to Barclycard on ---2009 under section 77-9 of the Consumer Credit Act 1974 for a true copy of my agreement

I note that they have replied to the above by sending their companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that the company is still in default under the act..I wrote to Barclaycard on ----2009 informing them of this.

To clarify, just sending the 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 default continues

sunflower99 · June 29, 2009

Account Number

ACCOUNT IN DISPUTE

Contrary to assertions made by (NAME OF THE PERSON WHO SIGNED LETTER) in a letter dated ----- 2009, Barclaycard has still failed to comply with its obligations under section 78 of the Consumer Credit Act.

The set of documents included in your letter however, do not absolve Barclaycard of its obligations under section 78 of the 1974 Act.

Regulation 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) requires the provision of a true copy of an agreement. Although this need not be an exact copy and certain information may be omitted from a true copy, it must still be a true copy rather than a conjectured reconstruction and the information that may be omitted is strictly specified.

However, it is not the case that information need only be provided in relation to an agreement as varied or that only the most recent version of the terms and conditions applicable to an agreement need be provided.

Seeking to rely on regulation 7 in supporting that position is to overlook both the distinctions between the wording regulation 7 on one hand and regulations 8 and 9 on the other.

Although regulations 8 and 9 use the word "comprise", regulation 7 uses the word "include". It provides that copies provided in accordance with any section other than section 85 shall include either an easily legible copy of the latest notice of variation or an easily legible statement of the terms of the agreement as varied.

Barclaycard would only have been entitled to provide a statement of the current terms of the agreement in lieu of a true copy of the executed agreement in the very limited circumstances in which regulation 9 applies (ie to agreements entered into prior to 1985).

Neither regulation 8 nor 9 applies in this instance, so the information provided must include the current terms and conditions and not merely comprise the current terms and conditions.

Accordingly, Barclaycard was (and is still) obliged to provide a true copy of the terms and conditions referred to in any application form in their original form, in addition to the current terms and conditions that have been provided.

I would be obliged if these could now be provided without further delay or prevarication.

In the meantime, the effect of section 78(6) of the Consumer Credit Act 1974 is that Barclaycard is precluded from taking any enforcement action whatsoever in relation to the account.

You are reminded that should litigation be your preferred course of action you will be required to provide the original document for the Court and that the courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the consumer Credit Act 1974 .

I really think that the best way forward to resolve this matter to both our satisfaction would be for you to-

(1) Confirm whether or not you still hold the original signed and executed document at your offices for this account and that it will be available to bring to any court should any type of legal proceedings be commenced in future.

(2) Send me a true exact signed copy of this original agreement if you still hold it.

3) Alternatively, if you still maintain you retain the original signed Agreement with all the prescribed terms as laid down in the regulations then I request to be allowed to view this at your offices and that you contact me in writing to arrange a convenient time to view the original agreement

I am sure that you will agree that doing the above will maybe resolve this matter and would also save future court time and costs, which would be in both our interests. I would appreciate your due diligence in this matter and I look forward to hearing from you in writing.

Yours Faithfully

sunflower99 · June 29, 2009

one of these letters amended to suit would be suitable i think.I used all three eventually in Barclayshark dispute as i am in same position with Barclayshark as you are with crapital one that they only sent me ts and cs!Also best not to sign any letters! Just print your name! Welcome to Cag by the way!

strongbowhead · June 30, 2009

Letter going today recorded delivery along those lines to Crap one.....!!!

Also received this morning a letter from Capquest after I had a letter from them last week chasing payment on the account and I CCA's them and got the following response today:-

Had received a letter two weeks ago stating they would settle the account for half what is claimed to be owed !??! I CCAd them and received this today !!!

Please fine enclosed copy document(s) as requested. If you are not currently repaying this account on an agreed arrangement, it is now imperitive that you deal with this matter immediately by sending payment directly to us:-

PO Box 396

Fleet

Hampshire

GU51 2WJ

then follows ways to pay etc etc etc

ending in

We have placed your account on hold until xxxxx 2009, if we do not receive contact from you by this date, your account will be passed to our Collection department for further action.

Attached is a very shady hardly legible sheet of paper headed Capital One CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974.

It has my name and address on the top left and a signature panel with a signature in that is clearly not mine !!! and another signature panel with a signature in (duly authorised) and dated Jul 2005

What are my next steps please ?????? :confused:

debt4get · June 30, 2009

nothing really they have failed to comply with your legal request and account is now in dispute, if they ring and you do want to talk to em ask them if that is the paperwork they are going to use in court?, there answer should be illuminating

clemma · June 30, 2009

You can send them the following letter if you want, or you could save the cost of a stamp and just ignore them:

Account no xxxxxxxxxxxxxx

xx/xx/2009

Re: my request under the Consumer Credit Act 1974

Thank you for your letter-dated xx/xx/2009 the contents of which are noted.

I note that you have included a copy of the document, which you aver to be the copy of the credit agreement between us

Now I wish to draw your attention to a series of concerns that I have with that document and why I feel that you have not discharged your duties under Section 78(1) of the Consumer Credit Act 1974

The document received is headed “xxxxxxxxxxxxxxxxxxxxx” within this first there are no prescribed terms as required by schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 SI 1983/1553.

To avoid any argument, the prescribed terms for this style of agreement (running account credit) are as follows

1. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,

2. A term stating the rate of any interest on the credit to be provided under the agreement

3. A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

Now im sure you are aware as per Wilson & FCT [2003] All ER (D) 187 among others that if the prescribed terms are not in the agreement then the agreement is rendered unenforceable

To be honest I cannot tell as its not legible, infact even when blown up on the pc it is not legible and as a consequence I believe that the document fails to comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

For your information, I reproduce regulation 2(1) for your reference

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

Clearly as the document you have supplied is not easily legible you cannot say that you have discharged your obligations under section 78(1) as the document does not comply with the copy document regs referred to above

Now to quote your own words from paragraph 3 of your letter “this means in effect as long as the terms are clearly shown, the CCA requirements are satisfied” well im sorry but they are not as the second part of this document that you supplied in reply to my CCA request is not clearly legible

Now to resolve this matter you can either supply me a copy of my agreement, which is in a legible form where all the terms are clearly stated and the prescribed terms are embodied within the agreement

Or alternatively, we can lay the agreement which you have produced in reply to my statutory request pursuant to section 78(1) of the Consumer Credit Act 1974 before the county court and I will request pursuant to section 142(1) of the CCA that the court make an order on the enforceability of that document.

However I am sure that the bank would not be keen on this happening as should the court rule that the agreement is not enforceable and you cannot provide a better copy than what you already have then the court would have no other option but to rule the agreement unenforceable

I think I have set out my position clearly and have even reproduced excerpts of the legislation on which I base my case, therefore I respectfully request that you reply to this letter within 14 days setting out if you can supply a more legible copy of the agreement or what action you propose to resolve this dispute if you cannot although the only real obvious option if you cannot provide a better copy would be for the bank to zero the balance on this debt as it cannot be enforced without a truly legible signed credit agreement containing the required prescribed terms

I await your reply

judi5060 · June 30, 2009

Hi There.

I received exactly the same as yourself from Cap. One about 3 weeks ago

and I must admit rather than wondering what letter to write I have just decided to save myself the cost of a stamp and have just ignored them. I have heard nothing from them since.

Judi

sunflower99 · June 30, 2009

I was thinking it a good idea to send clemmas letter to Capquest to make them fully aware you know your righst just in case they think you dont know your rights and try to escalate legal action and badger you with more threatograms and phonecalls! i see in other threads that capquest can be quite persistant and usually need to be nipped in the bud with a few letters! but as long as you make them fully aware you know your righta and disputing a dodgy cca they usually give up and eventually pass you back to crap one

Edited June 30, 2009 by sunflower99

strongbowhead · July 9, 2009

Received a letter from Crap One today saying the following.....

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

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 hae been varied, then the copy agreement will include the updated terms. In addition, your personal details, the signature box, signature and date of signature were omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983.

I must politely refer you to the key financial information section on your credit agreement provided to you. You will see these specifically provide details of the

A) Credit limit,

B) interest rates

c) monthly payments

Set out as required by the prescribed terms.

In your letter you request that we confirm a number of points to you. I would like to address the points you have raised individually.

We do not accept that your ageement in unenforceable. You clearly hae had a valid and enforceable credit agreement with Capital One, as evidenced by the documents we have already provided and any claim to the contrary will be strongly defended.

We will not be writing off the outstanding balance on the account as we do not consider the account to be in dispute. As we have fulfilled on what you have already requested, we will continue to pursue the outstanding balance.

We will also not be refunding all the payments, interest and sums that have been added to your account as your account balance consists of transactions that you have made.

We will not be paying your costs, as we have fully complied with your request.

The information we have recorded with the credit reference agencies is an accurate reflection of the way you hae managed your account and we will not be asking the credit reference agencies to remove this information.

Your account status remains behind with payments/overlimit and defaulted, the balance currently due and payable is XXXXXX

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 application 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 not have the option to contact the Financial Ombudsman Service within six months from the date of this letter. Their contact details are in our complaints leaflet, which I hae included with this letter.

Your sincerely

Ellie Renshaw

What next ???? Shall I still send the above letter to them ??? any help much appreciated from fellow caggers :confused:

strongbowhead · July 9, 2009