Capital (one) Justice

[johnerog]

Received from Cap One. Remember they have already admitted no signed contract; TWICE

 

I respond to the various points raised in your email below as follows:

Default Charges

We are entitled to charge £10.00 for providing a Subject Access Request to a customer, which would include all of your past statements. However, as a gesture of goodwill I have requested a complete set of statements for your account, and these will be sent to within the next couple of days without charge.

Once you have had the opportunity to review these, you will see that you have only ever been charged a total of £120.00 in default fees.

Capital One denies these default sums are unlawful and they are detailed in your terms and conditions and in your customer welcome pack. Our default sums are based on the costs we incur when a customer breaks their contract by making a late payment, failing to make a payment or goes over their credit limit. The default sums are only levied when a customer breaches their contract in this way and can be avoided if payments are maintained and the account kept within the credit limit. Capital One has acted in accordance with the terms of your credit agreement.

Furthermore the amount of interest you are claiming is incorrect. All interest on the default sums is charged at the purchase interest rate. The total amount of purchase interest we have ever charged since the account was opened is £2,665.19. This amount includes the interest on all of the purchases and only a very small portion of this figure has been charged on the default sums. On the basis of this, we cannot agree to the proposal of refunding the sum of £60 per month for the last 6 years to cover the interest and charges incurred on on your account.

The default sums have been correctly charged, however we are prepared to offer, without any admission of liability, a refund of the default sums charged totalling £120.00. We will also refund the total amount of the purchase interest charged on the fees in the sum of £24.59. This brings our total offer to £144.59 which, should you accept, will be refunded to your outstanding balance of your account which has defaulted. Please confirm by return whether you will accept our offer at which time I will provide you with an appropriate settlement form.

This offer is made purely as a gesture of goodwill and Capital One will now defend any claim made in this regard on the basis that we have offered to refund the correct amount

Your Agreement

I now attach a further reconstituted copy of your original agreement, which now includes your name and address in accordance with the judgment of HHJ Waksman QC in the case of Carey v HSBC [2--9] EWHC 3417 QB. Waksman's ruling confirmed that it is acceptable for banks to provide such reconstituted agreements in response to a request made under section 78 of the Consumer Credit Act 1974. There is no obligation for a creditor to provide an original copy of the agreement (including the signature) and failure to provide the same should not be used to draw inferences that no such agreement ever existed.

Furthermore we provided you with a copy of your current agreement as varied (incorporating the current terms of your agreement) with our letter of 18 March 2009. Accordingly Capital One has fully complied with its statutory obligations under section 78 of the CCA, it is clear that you have an enforceable agreement in place and that we may continue to enforce this debt.

I kindly suggest you take further legal advice on this point should you need further clarification of our position. Any claim made against Capital One in this regard will be strongly defended, and we may consider making an application to the Court for a wasted costs order should we succeed in having any such claim struck out.

Removal of adverse credit entries

I repeat the position detailed in my email below. The decision in McGuffick found that actions such as demanding payment, issuing a default notice, sending the debt to a debt collection agency if the debtor does not pay and reporting non-payment to the credit reference agency do not amount to enforcement. As such we will not agree to the removal of any adverse comments for your credit file. Any claim in this regard will be defended in the same manner as detailed above.

I look forward to hearing from you with regard to our offer as soon as possible.

Regards

[enoughisenough]

Nice one J

 

I'm watching very carefully as your circumstances almost mirror mine exactly...the only difference being no admission on their part yet. Looks like good drafting to me. Have you a schedule of expenditure and payments made on the account that the nice judge might ask you for as well...?

 

EiE.

[johnerog]

As the Claimant, wouldn't your name go first on the Statement, ie Johnerog V Capital One Bank ?

 

There are a couple of apostrophes missing - Claimant's in 4 and 5, 11 and 12.

 

I think it's absolutely brilliant.

 

DD

 

Thanks to all. The changes required will be made this end. ALL suggestions or corrections will be appreciated.

I was debating with my self about adding the Wilson comment regarding companies not getting their contracts right not being entitled to anything; anybody think it necessary.

 

John

[johnerog]

Nice one J

 

I'm watching very carefully as your circumstances almost mirror mine exactly...the only difference being no admission on their part yet. Looks like good drafting to me. Have you a schedule of expenditure and payments made on the account that the nice judge might ask you for as well...?

 

EiE.

 

Hello-E

 

No expenses to claim as such, I'm on incapacity benefit(hence the gaps in posting), when I am not arguing with ATOS and the DWP that is. In their e-mail they say they are sending statements I'll have a look at those and then decide what to go for.

I think DD is correct in saying the payments made on the balance may be construed as a gift, but not interest; they had no contractual right to that and their figure is £2665.

I have sent Adam Bergman a draft copy of the POC.

JOHN

[the_shadow]

John,

 

Nice of them to confirm they will be using Carey v HSBC, like the way they cherry picked the bits out of it too

 

234. The following is a brief summary of the principal findings and conclusions set out above:

 

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

This was in response to 5 (2) determining the preliminary issues:

 

(2) If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78(1), or must the creditor provide a copy of the original agreement as well?

So you have your counter to their claim they can just provide a reconstruction, they have given you proof that the agreement has been varied as they have provided a copy of the "varied" agreement alongside this reconstruction

 

S.

[johnerog]

OOOh.. Thank you Mr. Shadow.

 

Are both bits from Carey v HSBC?

 

I like the way they just convieniently forget that this has nothing at all to to with s78. We moved past that months ago.

 

John

[johnerog]

Here's a copy of the reply to the above e-mail.

 

Dear Mr.

Out of courtesy I enclose a copy of documentation to be filed at Blackwood Court in the very near future. It is a draft and may be subject to alteration.

I note from your e-mail that you have charged interest of £2665 on this non-agreement interest at your rates of 20% plus brings this up to almost £8000 over just six years.

For some reason you keep mentioning 'my agreement'. There is no agreement- no agreement exists, you cannot reconstitute something that does not exist. In court you will have to produce the original agreement and you have already admitted it does not exist.

As there is no agreement you do not have my permission to pass my information to Credit Reference Agencies

and if we go to court I will ask for damages.

My patience is wearing thin. Please be aware that I will take this to court if you continue to be unreasonable.

Please reply within 7 days.

[the_shadow]

OOOh.. Thank you Mr. Shadow.

 

Are both bits from Carey v HSBC?

 

I like the way they just convieniently forget that this has nothing at all to to with s78. We moved past that months ago.

 

John

 

The first quote is a copy of parts 1 -4 of paragraph 234 which is the summing up of the case by the judge himself, the rest (5-8) arent directly relevant in this instance imo.

 

The second quote is just pointing out the original point the judge was responding to in this summing up.

 

HTH

 

S.

[diddydicky]

John,

 

Nice of them to confirm they will be using Carey v HSBC, like the way they cherry picked the bits out of it too

 

So you have your counter to their claim they can just provide a reconstruction, they have given you proof that the agreement has been varied as they have provided a copy of the "varied" agreement alongside this reconstruction

 

S.

 

sorry if i appear thick here- but isnt that saying that they have to produce a COPY of the original as well as the varied agreement>

 

doesnt the same apply to the copy of the original as to the copy of the varied agreement( ie the copy need not be directly made from the original)

 

i'm confused

[johnerog]

sorry if i appear thick here- but isnt that saying that they have to produce a COPY of the original as well as the varied agreement>

 

doesnt the same apply to the copy of the original as to the copy of the varied agreement( ie the copy need not be directly made from the original)

 

i'm confused

 

Hi DD

Cap one are trying to bull**** by spouting about reconstituted copies when they have already admitted they do not posess an agreement at all (twice), and as Shadow has stated they will have to provide the original to the court and they could, and can, not do so.

John

[diddydicky]

but i thought they were trying to use the carey argument to say that they could re constitute an agreement for enforcement as well as s78?

 

in which case the quoted text does not help to contest their argument

 

what i was saying is that if they were allowed to reconstruct the varied agreement from other sources then under 4/ quoted in the post - they would be able to do so for the original as it does not say "must produce the original" it says must produce a "copy" of the original

 

again apologies if i am not grasping the point

[Bigdebtor]

If they don't have the original agreement how can they confirm the reconstituted one is in fact a "true copy"?

 

I would have thought a "true copy" of a non-existent agreement must be invisible, weightless, not written down on any paper and must be identical to every other "true copy" of non existent agreements - in which case how do they know it's definitely a true copy of the one that's not been agreed by you and not one that's not the non-existent agreement not agreed, not signed and not given to "someone else" (or indeed not given to his sister "anyone else" too as well and possibly also)?

 

Ask the judge to follow this irrefutable logic and then rule on that point!

 

BD

Edited March 3, 2010 by Bigdebtor
got a wee bit confused with my double negatives - still am!

[the_shadow]

sorry if i appear thick here- but isnt that saying that they have to produce a COPY of the original as well as the varied agreement>

 

doesnt the same apply to the copy of the original as to the copy of the varied agreement( ie the copy need not be directly made from the original)

 

i'm confused

 

Yes a COPY but not a re-construction... point 1 refers to reconstructed copies to satisfy s78 but in point 4 he actually states "copy of the original", if he had meant a reconstructed copy he would have said so as in point 1 imvho.

 

S.

[diddydicky]

Yes a COPY but not a re-construction... point 1 refers to reconstructed copies to satisfy s78 but in point 4 he actually states "copy of the original", if he had meant a reconstructed copy he would have said so as in point 1 imvho.

 

S.

 

ah yes, now i see the point

 

but i am (reluctantly) un- assured about that

[diddydicky]

Yes a COPY but not a re-construction... point 1 refers to reconstructed copies to satisfy s78 but in point 4 he actually states "copy of the original", if he had meant a reconstructed copy he would have said so as in point 1 imvho.

 

S.

 

ah yes, now i see the point

 

but i am ) un- assured about that (hope i am wrong)

[diddydicky]

If they don't have the original agreement how can they confirm the reconstituted one is in fact a "true copy"?

 

I would have thought a "true copy" of a non-existent agreement must be invisible, weightless, not written down on any paper and must be identical to every other "true copy" of non existent agreements - in which case how do they know it's definitely a true copy of the one that's not been agreed by you and not one that's not the non-existent agreement not agreed, not signed and not given to "someone else" (or indeed not given to his sister "anyone else" too as well and possibly also)?

 

Ask the judge to follow this irrefutable logic and then rule on that point!

 

BD

 

i think we would all agree with that- but things have move on........

 

you need to read carey v hsbc- it has already been established that a copy can be produced without reference to the original for the purpose of satisfying s78 (from other records)

 

the argument is whether this can be translated to producing similar copies for enforcement

[Bigdebtor]

what i was saying is that if they were allowed to reconstruct the varied agreement from other sources then under 4/ quoted in the post - they would be able to do so for the original as it does not say "must produce the original" it says must produce a "copy" of the original

 

But as I tried to ask most clearly;-) above - if they are not copying FROM the original - how can they CONFIRM it is a "true copy" of the original?

 

I know we know we can take their word for it as they would never lie:rolleyes: but a judge might not be as trusting as wot we all are:)

 

BD

[diddydicky]

But as I tried to ask most clearly;-) above - if they are not copying FROM the original - how can they CONFIRM it is a "true copy" of the original?

 

I know we know we can take their word for it as they would never lie:rolleyes: but a judge might not be as trusting as wot we all are:)

 

BD

 

i know what you aksed BD - its just that this argument has been flogged to death and for the moment the judge in carey v hsbc has ruled against your argument

[Bigdebtor]

i think we would all agree with that- but things have move on........

 

you need to read carey v hsbc- it has already been established that a copy can be produced without reference to the original for the purpose of satisfying s78 (from other records)

 

the argument is whether this can be translated to producing similar copies for enforcement

 

Surely it's enforcement capability that is the acid test - ducking and diving to avoid s78 is just a side show to the main event.

 

BD

[johnerog]

I think we are getting side tracked here. If you read the statement you will see that I stated that Cap1 have no agreement and I have asked for a declaration of parties.

Cap 1 cannot argue about that, they have admitted it, TWICE. The Muguff arguement is dead in the water.

[basa48]

Just to dive in the conversation here.

 

I have an almost identical situation. I am suing Shop Direct for return of interest on a catalogue account using virtually the same arguments. Shop Direct too have admitted TWICE they have no agreement. (They did originally send a scrap of paper with my OH's genuine sig in a the CCA box - but that was all that was on the scrap of paper - not anything else) but later said they had no agreement.

 

They too issued a DN which is why I sued.

 

Unfortunately I ballsed up my claim and only won my interest (by default). SDFC have applied for a set-aside which is to be heard later this month.

 

I shall be arguing no agreement no mandate for interest or data processing. Depending upon the outcome (which I fully expect to win) I may go for the declaration and damages for credit file status in a second claim.

 

McGuffick or Carey don't help the creditor on jot in either mine or johnerog's cases.

[diddydicky]

no agreement does not = no debt

 

no agreement = no legally enforceable debt

 

I think you may lose the argument for data processing- the reason being that whilst you may argue that they do not have a legally enforceable debt- i suggest that there will be more than enough evidence that you are indebted to them and that "an account" existed and that they are therefore entitled to record information as to the conduct of "the account"

[johnerog]

SCHEDULE 2 Conditions relevant for purposes of the first principle: processing of any personal data

 

1 The data subject has given his consent to the processing.

2 The processing is necessary—

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3 The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4 The processing is necessary in order to protect the vital interests of the data subject.

5 The processing is necessary—

(a) for the administration of justice,

(b) for the exercise of any functions conferred on any person by or under any enactment,

© for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or

(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.

6 (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

 

I'm sorry to disagree with you DD but these are the priciples of Data Control. No mention of conduct of account. Basicly, no permission no processing.

Regards

John

[diddydicky]

well naturally i wish you the best of luck john- keep us informed

[basa48]

well naturally i wish you the best of luck john- keep us informed

 

Also with no agreement there is no agreed term for rate of interest or timing of repayments. How then can a payment be 'late' or charges levied etc, etc. Does that not make the data inaccurate?