Cap 1 agreement is it enforceable?

[keith4444]

Hi Guys,

 

I have received this agreement from Cap 1 in response to (many) requests:

 

 

The quality is NOT from my scanner but direct from the Cap 1 scanner!

 

Now can someone please tell me if its enforceable or not, and if the latter why it is not enforceable?

 

I have seen this agreement before on here but I have never actually seen a response to say whether it is compliant with the CCA 1974 or not?

 

If there is another thread where this has been covered before i apologise and would appreciate pointing towards it

 

Thanks in advance

 

Keith4444

[Guest Old_andrew2018]

Bump

[beachcomber60]

Welcome to the Capital One (unenforceable agreement) Fan Club, another 'alleged' cut & paste agreement.

 

I see you've subscribed to Sunflowers thread, you'll get all the help needed there from fellow C1 'sufferers'.

 

Your 'agreement' is the same as mine and many many others, what date is it from pre2007?

 

You can view my thread/agreement, cant do a link to it as I'm using my mobile at the moment, but if you click on my user name you will be able to get the link from my thread list.

 

Are you being chased at the moment?

 

C1 & their in house dca Debitas can be a pain but they will back away when you show you know the cca 1974, but just make sure when you write to either you send everything recorded.

 

Do not talk to them on the telephone & keep everything in writing.

 

If I can help any further just shout.

 

Beachy

[keith4444]

Hi BC

 

Thanks for your reply, Currently being chased by Capquest at the moment, have sent the usual "bemused" letter but after they sent the above they are still chasing, I want to know exactly what is wrong with the above to throw it back into their court. I see you sent CQ a letter and they then threw it back to Cap1, any chance you could post up what was in that letter please? Or send it o me via PM if you prefer? I will take a look at your thread again to see if I missed anything.

 

Thanks

 

Keith4444

[beachcomber60]

I'll PM you later today or early this evening when I get home.

 

 

Beachy

[keith4444]

I'll PM you later today or early this evening when I get home.

 

 

Beachy

 

Cheers Beachy

 

Keith4444

[vint1954]

Needs to be disputed on the grounds of legibility. Also unlikely to have the second page on the reverse of the front.

[beachcomber60]

What month/year did you open the account, I notice that it states reference to a 'PIN' which is not mentioned in my 'alledged' agreement.

 

was it pre 2007?

[keith4444]

What month/year did you open the account, I notice that it states reference to a 'PIN' which is not mentioned in my 'alledged' agreement.

 

was it pre 2007?

 

Hi its from July 2002

 

Keith

[keith4444]

Needs to be disputed on the grounds of legibility. Also unlikely to have the second page on the reverse of the front.

 

Is there a letter template we can use for legibility?

 

Keith

[vint1954]

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account is now 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, supplying only an illegible copy of what may or may not be an agreement. 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 have to date only received terms and conditions from yourselves.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do 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.”

 

I also 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 copy of an executable agreement. 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.

[beachcomber60]

Needs to be disputed on the grounds of legibility. Also unlikely to have the second page on the reverse of the front.

 

 

My 'agreement' has second page on reverse of the first - still unenforceable though

 

Keith was it in dispute C1 before capQ got their mitts on it? Do you have any charges/ppi added to the balance?

[keith4444]

My 'agreement' has second page on reverse of the first - still unenforceable though

 

Keith was it in dispute C1 before capQ got their mitts on it? Do you have any charges/ppi added to the balance?

 

 

Firstly thanks Vinty for that letter, not seen that one before!

 

BC Yes the account was in dispute with C1 before CQ started hassling, this is the first time I have had a document with a signature on it though, C1 just sent copies of terms and conditions (after trying to get a signature out of me!) The above was in response to the "bemused" letter.

 

The document above came as it is shown here (with my details and signature included), on 2 pieces of A4 stapled together.

 

Thanks

 

Keith4444

Edited September 10, 2009 by keith4444

[beachcomber60]

Firstly thanks Vinty for that letter, not seen that one before!

 

BC Yes the account was in dispute with C1 before CQ started hassling, this is the first time I have had a document with a signature on it though, C1 just sent copies of terms and conditions (after trying to get a signature out of me!) The above was in response to the "bemused" letter.

 

The document above came as it is shown here, 2 pieces of A4 stapled together.

 

Thanks

 

Keith4444

 

 

In that case typical C1 rubbish, did you get my PM this morning?

 

Beachy

[keith4444]

In that case typical C1 rubbish, did you get my PM this morning?

 

Beachy

Yes and replied

 

Keith4444

[sunflower99]

It looks very similar to my unenforceable one and nothing proves that what they are implying on reverse is actually on reverse! also as it is quite an old one from 2002 is very likely they got nothing enforceable!

[keith4444]

Thanks Sunflower

 

Do you know if any of the prescribed terms are missing from this "document"?

 

Keith

[sunflower99]

Hi Keith

It is very difficult to read the condtions,I supose in the very unlikely event that page was actually on reverse of your application form i suppose being a credit card they might try and argue that those percentages and APR terms are enough to act as the prescribed term for a running account such as a credit card,But i personally dont think that that second page is reverse of it ,I actually sent crapital one a letter asking them to confirm whether the two pages of mine were from same dcoument and asking to be allowed to view alleged original at their offices in Nottingham but Ellie ignored those request that to me speaks volumes!

[sunflower99]

Plus somebody on my thread actually went to bother to work out annual apr rates on my figures crapital one provided on the second page they were trying to imply was on reverse and apparently the sums did not work out so i was told that that made my second page inncorreclty executed even if it had been on reverse of my application form.

[sunflower99]

That crapital ones staff signature used looks exactly the same as mine if my memory serves me correctly! in fact it is amazingly similar!

[keith4444]

Hi Sunflower

 

Yes I am a subscriber of your infamous thread Very interesting reading it is too

 

Thanks for your replies, I will await the reply to the Vint letter I sent them yesterday,although I'm not holding my breath for much LOL

 

Keith

 

P.s The signature I assume is a generic one that they use for all applications (either a stamp or added on a computer) would that alone make it void?

 

P.p.s. At what stage are you now Sunflower have you left it in "limbo"?

[Old Cogger]

Bump

[sunflower99]

Hi Keith

I am glad you found my crapital one thread helpful though it is getting very long now! LOL and i reckon by the time a person reads through all that theri debt will be statue barred! I am aiming to have longest crapital oine thread on cag! As regards me crap one have gone quite quiet and not heard from them for several months!though i supppose they will send some more pondfeeders sometime in future'That letter from vint is a good one!

[vint1954]

Hi Keith

I am glad you found my crapital one thread helpful though it is getting very long now! LOL and i reckon by the time a person reads through all that theri debt will be statue barred! I am aiming to have longest crapital oine thread on cag! As regards me crap one have gone quite quiet and not heard from them for several months!though i supppose they will send some more pondfeeders sometime in future'That letter from vint is a good one!

They will ignore it though. We make the mistake of thinking that the person you write to, has a modecum of inteligence.

 

Maybe a better letter would be:

 

Oi you,

 

Your agreement is Cr**

 

Here is lots of laws proving it.

 

Now bog off.

 

Yours affectionately

 

A.N. Old duffer

[sunflower99]

They will ignore it though. We make the mistake of thinking that the person you write to, has a modecum of inteligence.

 

Maybe a better letter would be:

 

Oi you,

 

Your agreement is Cr**

 

Here is lots of laws proving it.

 

Now bog off.

 

Yours affectionately

 

A.N. Old duffer

Hi Vint

LOL! Yes it would save a lot of time and printer ink! and would be a lot kinder to them as they would not have to tax their poor old brains so much!