Capital One v Questioner – no.1 & 2 accounts

[BlueBox]

For whatever reason, I now rarely get calls from card compamies or DCAs. (I hope I don't regret saying that)

 

Capital One were phoning 3-4 times a day (and shown as such on their SAR'd logs). I complained that the calls were distressing to my children because they were met with silence when the call was answered which was especially disturbing as they were alone after school. (I'm sure you've experienced the pause before anyone speaks.) They just stopped after that.

[questioner]

In respect of the Application form, it doesnt contain the prescribed terms. So bad news for them.

 

In respect of the DN. With regard to the amount of days ie "28". Yes, the regulations say "specific date".. but unless there is another and more fatal issue (which I will come to later) then I doubt that you would get away with relying on that .. perhaps if it said something like 14 or 17 days you might be able to fight it. However,.......

 

The DN just gives a balance. It doesnt say anything about arrears which is primarily what a Default Notice is all about.. asking for arrears prior to asking for the lot by way of termination or a formal demand.

 

Your DN just says BALANCE £ XXX. Am I assuming correctly they are asking for the outstanding amount they say is due ??

 

So that is your fatal flaw if it is.. cos they cannot ask for the full amount on the DN

 

 

"Your DN just says BALANCE £ XXX. Am I assuming correctly they are asking for the outstanding amount they say is due ??"

 

The Capone DN has the full balance mentioned at the top.

 

It does not mention any arrears figure. So what I am to assume?

 

 

Do I write telling them that this invalidates the account further as unlawful rescission of contract or whatever one calls it ?? Help!

 

I need a paragraph to deal with this if it is so apt for purpose herein. If I have a weapon then I shalll utilise it well.

 

I seem to be turfing up more and more of such imperfect DNs as I get into this battle.

 

PS. I just noticed that both accounts I have with Capone have the very same type of DN which fails to give any 'arrears' figure, but states a full balance at the top. To be fair - they just mention one needing to take action within 28 days of the date of their letter to "pay any overdue amount on your account".

 

No figure is however stated for this amount.

Edited November 18, 2009 by questioner

[questioner]

Twiddling me fingers waiting for the SAR to come.

 

However I just did a quickie run down of PPI since 03 and it seems that they owe me more than they want me to pay them for any alleged debt.

 

And I also have a nice bunch of 20 quid late payment charges to consider as well..

 

Ombudsman has uphold 98 % of complaints about insurance moans against CAPONE according to their Jan - June 09 stats too so ... lol

[citizenB]

[questioner]

12 months ago the worst part of this lark was waiting for the postie to bring in all the terrible threatograms off aggressive sharks.

 

Now the worst part is all the infernal waiting for the SAR griff to arrive so that one can start banging up all the 'orribly missold PPI .

 

And as we now know; missold PPI is a good 'un for making sure that any of them old flawed agreements are genuinly unenforcable too.

 

Hell - its so tough being a victim of the UK banking system at times!!!

[citizenB]

 

Hell - its so tough being a victim of the UK banking system at times!!!

 

 

I'm sure you will cope

[vint1954]

12 months ago the worst part of this lark was waiting for the postie to bring in all the terrible threatograms off aggressive sharks.

 

Now the worst part is all the infernal waiting for the SAR griff to arrive so that one can start banging up all the 'orribly missold PPI .

 

And as we now know; missold PPI is a good 'un for making sure that any of them old flawed agreements are genuinly unenforcable too.

 

Hell - its so tough being a victim of the UK banking system at times!!!

And may get tougher. Nobody has taken them to task over their practices, although there are so many bodies that are supposed to regulate them.

 

If they were going to do something, this crunch would have been the prompt. Successive governments, both colours, have all cozzied up to the banking industry. We have nothing else now apart from service industries and banking, so they won't hurt the industry.

 

Vint

Becoming a grumpy old man.

[citizenB]

Disgusted consumers turn on ‘shoddy’ complaints watchdog - Times Online

 

Did you see this Q ?

 

Ah, Vint.. you arent a grumpy old man

[vint1954]

And this one from earlier this year.

 

Credit card companies back down on charges - Times Online

 

I'm only 24.

[questioner]

I am not surprised about teh FOS as they have proved to me that they ignore the fact that banks have NO proper agreement and go along with the bank claim that such worthless things as app forms are properly-executed agreements.

 

I have pointed out in great depth to Capone that they have NO agreements with me, due to only supplying illegible app forms. However they have ignored this and threatened me as below. They attitude is to therefore continue to harrass me until I give them dosh.

 

Of course the apathetic FOS would back them and not me for they have a magic app forms but is this fair, is it lawful?

 

 

 

 

Wrong - they sent an illegible application form and bits of some terms and agreement that could have related to anyone.

 

This is page two....

 

 

 

I really makes you wonder if its all worth it for a few hundred quid at times - but but no fear - I do not give in to bullies........

Edited November 27, 2009 by questioner

[questioner]

And the second letter off Capone is equally misleading - they never sent any signed signature page of an agreement - but just an application form.

 

Nowt - zero - ziltch, agreement.

 

 

 

2nd page of the standardished nonesense...

 

 

 

Now the interesting this is that although they say they will now just ignore me and send in the dogs - they have ignored the following .......

 

 

Following the issue of an invalid Default Notice Capital One has unlawfully rescinded the alleged agreement by terminating the same.

 

 

 

 

Still, what do they care about such matters..

 

Looks like I shall be batting back the sharks from this one for evermore......

[BlueBox]

Similar letter received, although they have already filed a default against me. I have a scrappy application form with no prescribed terms on it at all (although it does have my sig on it). I made it clear that I was not complaining under s78 as they had obviously sent me all they had, but under s60/61. Still waiting for a reply but I have said that court action will follow if they don't remove default.

 

My SAR info came quite quickly from Cap One, although the copy application form followed some weeks later.

[questioner]

I have been waiting for over a month for them to get SAR to me.

 

They owe me a lot of PPI too.

[vint1954]

I realy don't know where they think that they are going with this one.

 

However, all of the Banks behave in the same way. They will never admit that they have no case. The FOS is paid for by the banking industry. Why should we expect anything different from them. The only choice is to hound their masters, MP,s and Ministers, until they look into it. The fact is that there are no regulators that will adjudicate on a non complient agreement. Only the courts will do that.

 

Try using parts of the letter below.

 

I am in receipt of your letter dated xxxxxxxxxxx

 

 

 

You are intimating that the documents Egg have sent to me, in the form of an illegible application form, do comply with the CCA 1974 as an enforceable agreement. In that case, given the facts outlined in previous letters to xxx, perhaps you could direct me to all of the prescribed and required terms in the xxxxxxxxxx That xxxhave sent to me given the fact that these should be on the same page as the signature, I think you will find that they are not there.

 

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows xxx to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

I hope this explains why your reply was unacceptable and would remind you again that whilst the request has not been properly complied with the dispute continues.

 

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

 

Turning to the forms that xxx have provided, this document contains none of the prescribed terms, laid out in the prescribed manner, as laid out in the CCA 1974.

 

Referring to Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements. I refer to the cases of Wilson V FCT and Wilson V Hurstanger.

 

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

 

In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me without my signature on does not contain the prescribed terms and as such is unenforceable in several areas.

 

Looking to Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

 

In relation to position of Signatures and Prescribed T&C It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers

 

 

This is Further interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

The only further correspondence I expect to receive from you is the acknowledgement that you are not pursuing this matter.

 

I trust this outlines my position clearly and you may consider this to be my final response.

[citizenB]

I like that, Vint. Dont you just love messing with their heads and their carefully crafted template letters :D

[vint1954]

I like that, Vint. Dont you just love messing with their heads and their carefully crafted template letters :D

I do get an amount of pleasure messing with them:D, though I shouldn't. Should be grown up by now.

 

We still need to remember that nought is likely to come from complaining to any regulator, excepting that their complaints list grows as a whole.

 

Vint

[questioner]

Nice little victory here.

 

I had complained to OFT about the unfair activities of CapQuest via chasing an account in dispute. OFT showed great interest in this particular outfit. So in rolls a letter to say they have now closed the file and sent it back to CAPONE with sincere apologies. Sweet!

 

TO BE FAIR I HAVE A BIT OF AN ARGIE BARGIE WITH A VERY PUSHY CAPPEST CLOWN ON THE BLOWER WHO THOUGHT HE COULD GET THE BETTER OF ME BY TALKING OVER ME. OFT WANTED ALL DETAILS OF THIS CALL ...This I felt compelled to tell them all about - in some details!!!

 

Now I just need OFT to do the same with his masters voice at CAPONE HQ.

 

I have already written a shortie response about only wishing communication in writing only - but I may also cut into your neat letter above Vint - thanks.

 

I may also remind them that their Heavies (as above) have just seen fit to ditch the file, give a VERY crawling apology and push it right back into CAPONES dictatorial face!

 

This shows what Capone have - NOTHING!

Edited November 27, 2009 by questioner

[questioner]

OK - HERE WE GO.

 

 

CAPONE HAVE SENT THIS LETTER BELOW - ONLY PROBLEM IS THAT THE AGREEMENT NUMBER IS ALIEN TO ME... NEVER HEARD OF IT!

 

I THINK THEY ARE REFEREING TO THIS THOUGH.

 

Thet informed me with ref to PPI that this product was sold to me during a “telephone conversation in 2001”.

 

So I said........

 

Therefore, you will no doubt have a recording of that call in order to prove this? Please confirm. However, I find it rather odd that the application form you have provided and which you assert is an authentic copy, is dated summer of 2000 – how very odd! I am sure you are in a position to explain this inconsistency to me?

 

 

 

 

What fun I shall have when I get my PPI claim in action......

 

Naturally - they ignored all ref to the agreement being crap due to a silly app form.........

[the_shadow]

 

 

 

What fun I shall have when I get my PPI claim in action......

 

Naturally - they ignored all ref to the agreement being crap due to a silly app form.........

 

 

Ok not only are they showing incompetence with the account number being wrong...they also have not stated they cant provide the telephone conversation just rather that they wont...

 

If you've SAR'd them before now and they havent supplied a copy then with this letter imo you have grounds for issuing non-compliance through the courts if you so wish.

 

S.

[questioner]

I will use courts as a last resort but yes - I have SAR'ed them and am still awating a reply. They have cashed the tenner.

 

One would think they could at least get the number right eh.

 

I will have to think what to say to them next...

[questioner]

Capone sent one of the accounts in dispute to CapQuest.

 

OFT got interested after I reported it and next I got a note of CQ apologising profusly.

 

I next get a letter off CAPONE tellin me that it was no longer being managed by a DCA and that payments should continue to CAPONE.

 

 

Plonkers!

 

THEY HAVE NOT HAD A PENNY SINCE SUMMER.........I dont give to such charities

 

ALL THIS BALONEY ON THE BACK OF AN ILLEGIBLE APP FORM AND AN DODGY DN THAT INVALIDATED THE ALLEGED ACCOUNT SOME TIME BACK.......

 

I shall be furnishing CAPONE with one of my slightly altered template letters to tell them what to do....

 

Oh and they have failed to honour my SAR in the allotted time frame - even though they have cashed the cheque.

Edited December 5, 2009 by questioner

[questioner]

The Capone DN they sent was defective yet the claim it is ok in the letter below.......

 

Opinions.

 

 

[questioner]

I have previously infomed them that they termainated AFTER issuing this defective DN thereby

 

becoming responsible for unlawful rescission of contract.

 

 

They obviously know best though ands kindly tell me how they shall be threatening me next........

[the_shadow]

No surprises, they are hardly likely to turn round and say... by jove, we've made a mistake especially if they've terminated the agreement on the back of a dodgy DN.

 

S.

[questioner]

No surprises, they are hardly likely to turn round and say... by jove, we've made a mistake especially if they've terminated the agreement on the back of a dodgy DN.

 

S.

 

S - thanks

 

I would like to press them very hard of the rescission of contract issue .

 

iT MUST BE CONCERNING THEM TO MAKE THEM RESPOND LIKE THIS . ALTHOUGH THEY FAIL TO GO INTO ANY DETAIL ABOUT WHY THEY THINK THEY HAVE NOT BLOWN IT.

 

THEY ALSO SENT A PILE OF OLDER LETTERS WITH THIS REPLY RELATING TO THE S78 cca WHICH THEY ALSO SAY IS FINE. I.E A SCRAPPY APP FORM....

 

I LIKE THE WAY THEY THREATEN ME WITH DCAS AFTER ALL THIS BLUSTER TOO.