Cap 1 CCA response - Opinions and next step(s) please?

[mjc007.5]

Well the first of the many CCA requests has dropped on the door mat this afternoon. Cap 1 credit card, cannot be sure of exact date of account opening but in excess of five years ago.

 

 

 

Attached total of six "pages" but to explain -

• Page 1 and 2 covering letter, double sided.
  
• Page 3 and 4, "current" terms of agreement with them
  
• Page 5 and 6, two sides of what appears to be standard leaflet, no obvious sign of a date on it anywhere
  

From what I have read here not at all sure any of this adds up to an excutable or enforceable agreement of any description but I may well be wrong?? :?

 

 

 

My questions for the good people of CAG:

1. Is what they have sent me (a) compliant and (b) enforceable?
   
2. If no to either of the above advice/suggestion for next move?
   

Many thanks as always

Cap 1 CCA Response p3 001.zip

[havinastella]

1) Yes

2) Probably NOT!

[vint1954]

Well the first of the many CCA requests has dropped on the door mat this afternoon. Cap 1 credit card, cannot be sure of exact date of account opening but in excess of five years ago.

 

 

 

 

Attached total of six "pages" but to explain -

• Page 1 and 2 covering letter, double sided.
  
• Page 3 and 4, "current" terms of agreement with them
  
• Page 5 and 6, two sides of what appears to be standard leaflet, no obvious sign of a date on it anywhere
  

From what I have read here not at all sure any of this adds up to an excutable or enforceable agreement of any description but I may well be wrong?? :?

 

 

 

 

My questions for the good people of CAG:

1. Is what they have sent me (a) compliant and (b) enforceable?
   
2. If no to either of the above advice/suggestion for next move?
   

Many thanks as always

I can't actually see anything with your name on it?

[mjc007.5]

Hi Vint,

 

You are correct save two places - the covering letter, and page 3 (signed by Stephanie) where account number, credit limit and name/address details are typed into what appears to be template letter (guessing a few of these requests have passed their way of late!). I know this because in the life of my interactions with Cap 1 they have changed their corporate letter heads, branding etc and this is definetly in the new style.

 

I am not at all convinced this is enforceable or even properly compliant but just looking for some expert guidance as to if I am right/wrong and what the next step should be??

[mjc007.5]

little bump - any more advice gratefully recieved

[vint1954]

Hi Vint,

 

You are correct save two places - the covering letter, and page 3 (signed by Stephanie) where account number, credit limit and name/address details are typed into what appears to be template letter (guessing a few of these requests have passed their way of late!). I know this because in the life of my interactions with Cap 1 they have changed their corporate letter heads, branding etc and this is definetly in the new style.

 

I am not at all convinced this is enforceable or even properly compliant but just looking for some expert guidance as to if I am right/wrong and what the next step should be??

If that is what they have sent, I am convinced. It is not enforcable.

 

Send this one next and wait for a response.

 

Dear Sir or Madam,

Account no xxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request instead sending a copy of your terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

I would remind you that while this alleged account remains in dispute, that you:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, 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

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

Yours faithfully

[mjc007.5]

Excellent as always - Had been thinking along these lines (although this is stronger!). Will let you know how I go. Tried to add to your rep but won't let me at the moment

 

Basically we have this is what your terms and conditions would have been /are spread across a number of pages with no clear indication other than a generic space for name, address, card number and credit limit that they in any way relate to me specifically! I am sure will be the first of many like this

 

General impression I had (and still have having spent far to long here! ) is that if they have the agreement there should be nothing to stop them giving it to you and blowing any query about enforceability out of the water! Seems to me that nothing to loose by asking the question so will continue to pursue!

[mjc007.5]

Little addendum to my earlier questions - Cap 1 have actually responded well within their 12+2 days (even if it is likely unenforceable!). Do I write straight back with Vints letter or wait for the 12+2 days (in case they send any more??). I know unlikely but as this is the first one with a questionable response do not want to muck it up!

[havinastella]

Whereas Vints letter is long and ponderous. It is also incorrect.

 

AS I stated in post 2, THEY HAVE complied with your request.

 

Jogs

[mjc007.5]

Hiya Jogs,

 

I am on a very steep learning curve here so all input is very gratefully recieved!

 

You said in post 2 that it was compliant with the request and initially I thought fair enough - but on closer inspection it does seem to be a combination of reconstructed template with my typed details on and a "current" terms leaflet. If it is reconstructed then does this not bring in to question if it is a "true copy" and therefore compliance? (I accept I may have this wrong of course). If it is compliant then would the next step by SAR to try and access an agreement (or confirm either way if they have one?)

 

You also said in post 2 that it is probably is not enforceable. I understand there is a very big difference between compliance with the request and enforceability but any elaboration on the view about being enforceable would be gratefully recieved.

 

Apologies if being dippy but having stabilised things with the help of folk on here now trying to maintain dual approach of repaying everybody what is legally owed to them whilst standing up for myself where necessary and it is a truly mammoth task to get to grips with!

[havinastella]

Hiya mjc,

 

The OP can send almost anything that has T&C's and a rough outline of your agreement. This seems to satisfy the particluar request that the template letter asks for.

 

Now don't for one minute think that this makes in enforceable. Rather than sent the letter vint kindly posted for you, you have to force the issue.

 

You can check out PT's excellent thread here

 

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

 

CapOne are a bloody nightmare and you need to know what you really want from them at the beginning. They will NOT go away.

 

Have a look at my CapOne thread here

 

http://www.consumeractiongroup.co.uk/forum/capital-one/50003-havinastella-capital-one.html?highlight=havinastella+cap

 

 

Jogs

[mjc007.5]

Hiya Jogs,

 

Very informative read (both links!) - you have been through the mill with this lot! Many thanks

 

I am wondering if an alternate tack would be rather than argue the point over their response to the initial request I maybe just confirm I am not satisfied and seperately go for a SAR (could do without the £10 fee) first. If this does not produce the agreement (with account in arrears and "over" limit - although due to charges!) then the CPR route as advocated by PT? (on basis of unenforceable agreement, possibility of litigation either way and penalty charges - I know have paid many, many charges both £20 and £12!!).

 

I know I have paid them back many times over for a relatively small credit card debt. The point in all of my cases is if there is a legal agreement and everything has been as it should be I am actually paying it back it back in full. Where they are not squeaky clean I am looking to establish this and payback only what was actually lent to me! (lots of success with this in the "payday loan" market but obviously more difficult with the big corporations!).

 

Thanks for your input, most helpful

[vint1954]

Whereas Vints letter is long and ponderous. It is also incorrect.

 

AS I stated in post 2, THEY HAVE complied with your request.

 

Jogs

Long and ponderous it may be but in my opinion correct. They have not complied. They may as well have sent a sugar puffs box. There has been a lot of discussion recently regarding the rubbish that OC's send out as a true copy and what has been sent to MJC is not a true copy by any stretch of the imagination or indeed the opinion of the OFT.

 

The account needs to be put in dispute as the next stage. CPR31.16 does not do that, neither does SAR. Or you can simply cave in and accept this rubbish agreement. The bulk of the letter that I have posted, is from the forum template.

 

As a minimum, the true copy of an agreement must have the debtors name and address on the agreement (CCA1974).

 

If you use CPR31.16, you need to be prepared to follow through to court action. If you enjoy that then fine, but your dispute will not have been registered.

[mjc007.5]

Good morning Vint,

 

Good of you to come back to my thread (you have already helped me in so many others - Halifax now "perplexed" at my acceptance of their repudiation via dodgy DN followed by termination notice followed by communicating with me as if nothing ever happened followed by please send us a copy of our dodgy DN and termination notice because they do not have them on file!! ).

 

I was really clear that I did not think Cap 1 had complied but one of the beauties of this site (apart from very supportive folk) is that you get a very helpful sounding board that also provides alternate view and debate on the issue you raise in a thread. Jogs expanded on the initial response he made (think I have this right from the Jogs v Cap 1 thread) and threads quoted did this still further (sx20's debate with PT in CPR 3.16 thread caused me some late night reading! ). I think you have both made clear for me (and you have previously as well) that whichever path is chosen a clear idea of your aims is important as well as being prepared to follow through on the chosen path (even if it includes court eventually). I think for me in this case we are looking to challenge the enforceability first (this is my oldest "agreement") and if this does not work or is not viable then pursue the charges applied as this will at least significantly reduce what they are claiming!

 

I certainly do not wish to go to court if I can avoid it (although with the help of the folks here would not shy away from it if required) and as I have intimated where legal debt exists I am being really pro-active in paying as much as I can afford (CCCS are not happy with me challenging folk and the first test will be when I tell them that Halifax are only getting the arrears at the time of their repudiation! They are accepting it with reluctance as the relationship between us is one of mutual benefit - they make money from me whilst paying the legitimate debt and it has brought valuable time for me to start working on the less legitimate debt!). I am also wary of overconfidence following a couple of easy wins in the "payday loan market" - really do not want to run before I am properly walking!

 

So generally your view would be along the lines of what I said in post 7? I am certain that I have read somewhere amongst all the info here that a reconstructed agreement (which in effect is what the template thing with my address and details typed in appears to be) would in itself be insufficient to acheive compliance with the request but for the life of me cannot find it! I am going to register the complaint with perhaps a slightly moderated version of what you have suggested (I am nowhere near as confident as you ... yet... but I certainly do not do caving in any more! ) and see what I get back. I suspect if not successful then would need to review my options and at that point consider if CPR and potentially court is worthwhile? I understood from reading here that really cannot do challenging enforceability and charges at the same time but general consensus appears to be challenge first and then charges where credit cards are concerned?? (may have this wrong!).

 

Anyway many thanks as always

[vint1954]

Hi MJC,

 

The decision has to be yours and yours alone at the end of the day. This is ultimately a self help forum, giving guidence from experience. I like you had to form my own opinion when I first joined the forum. I took the decision that I would follow the well trodden path, beaten out by others before me. The site team, Cerberusalert and most definitely sx20 have given very sound adviceand I have read for hours on their debates and follwed their advice. Some of these posters, quite obviously have a legal background, but cannot say so. Others may differ and each entitled to their own opinion, as you will have a reasoned opinion. The general form of proceedure was:

 

1. Send CCA request.

 

2. Send in dispute letter if no agreement was available, or it was faulty. This was inportant as it puts the account in dispute, even if they ignore you.

 

3. When letters arive from the OC's, post and advice will be given.

 

Now it depends on what you are trying to acheive. If you want the OC to show his hand as to the agreement that he holds, if any, then the cheapest route is to use CCA request. If you want a copy of your signed agreement, to be able to take a legal challenge to court yourself, then CPR is the route to take, forcing the OC to supply a copy of the origonal, but you will have to follow this through to the end, in order to get your agreement, if they have one. I issued requests to my 3 creditors under CPR31.16. All have been ignored and unless I wish to go to court, they will continue to ignore the requests.

 

My objectives were to defend the barrage of threats that I was getting, following lack of income due to redundancy. Although I offered reduced payments, they treated me as the spawn of the devil, even after a very long relationship in most cases. The fact is, that if they want to proceed to court, OC or DCA, they will need the origonal agreement.

 

The other route is SAR. This costs £10 and if they hold an agreement, then they must supply it in this pack.

 

With regard to the Halifax, I would not be inclined to send copies of the DN & TN. I would write to them giving the dates of the notices and the name of the person that sent them. I have exactly the same situation and they need to learn not to send them out like crisp wrappers. Following advice on here, I have just referred to unlawfully recsinded agreement.

 

Cap 1 in my opinion and the opinion of the OFT enforcement arm, have not complied. Some on this forum, now seem to be accepting that the OC can supply any rubbish in response to a CCA request. This is a recent developement.

 

They would not be able to take you to court, on what they have supplied, or would be foolish to do so.

 

With regards to pressing home with the CPR, that must be down to you. I have chosen to wait. There realy is no milage for me in taking them to court, unless you enjoy that sort of thing.

 

I would advise reading through the threads started by sx20 and cerbersualert and also look through the stickeys.

[vint1954]

At the end of the day, you have to decide if what they have sent is a "true copy" of your agreement as laid down in the CCA1974. If you are happy with it, then they have complied in your case, without an agreement bearing your name, address or anything to link it to you.