Capital one CCA received, please help

[car2403]

2 merged

[car2403]

I can't see the agreement that you've posted, as attachments appear too small to read properly, plus it sounds like they've sent you additional T&C's that haven't been posted here - can you post what they have sent you?

 

If you follow the beginners guide to CAG, in my signature, it will show you how to upload via Photobucket, which will make looking at them easier. Remember to remove personal details.

[car2403]

This looks like a typical Cap 1 agreement.

 

To be enforceable, the agreement needs to contain the prescribed terms - which are credit limit, interest rates and repayment details - plus it needs to be signed by the debtor.

 

With yours, as with all the others, they do have all this, but the question is, are the prescribed terms and your signature all part of the same document? If they aren't the agreement is unenforceable, as s.127(3) CCA 1974 applies. (If you also tell me the agreement is dated prior to 7 April 2007, that is, otherwise it will be enforceable regardless)

[car2403]

Sorry, do you mean that if the agreement was signed prior to 2007 it will be unenforcable?

 

Yes. When did you enter in to it?

[car2403]

Can anybody please help further, is it unenforceable and if so how do I respond to Lowells, many thanks

 

Right, I typed up a huge reply to this last night, hit submit and my PC crashed - I was hoping it had saved, clearly not...

 

Anyhoo, you need to send this to Lowell;

 

Dear Sir/Madam,

 

Re: Account Number ***

s.78(1) Consumer Credit Act 1974 request

 

I note that you have replied to the above by sending 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 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 cancellable 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.

 

In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit At 1974, as amended, and the subsequent regulations made there under.

 

For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.

 

Further more, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the Court to consider the agreement and make a declaration of the rights of parties to the agreement. (s.142(1) Consumer Credit Act 1974)

 

I must stress this part of my request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the

Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by 4pm on ***

 

Yours faithfully

 

Edited August 10, 2009 by car2403
Forgot about those flaming personal details ;)

[car2403]

Can you scan/post what they've sent with this - removing personal data beforehand, of course?

[car2403]

So, this is the reply to the letter in post #41?

 

If so, it's all huff and no puff, then.

 

They obviously don't have an enforceable agreement, or they would have sent it to you.

 

They haven't addressed the issues you've raised in that letter.

 

You can either ignore them and see if they take you to Court, or take them to Court yourself.

 

Any further letter writing is just wasting your time.