Capital One - Advice Please

[soli2008]

I have an ongoing dispute with Capital One over an alleged credit card debt. This is now in the hands of Capquest DCA. I recently sent them a CCA request and attached is what they sent me. Is this an enforceable agreement? I have ad a look at lots of other posts and i get the feeling that it is not enforceable as there are no repayment terms, interst rates, general terms &conditions, etc. I would appreciate someone more knowledgeable than i am giving thier opinion please. If as i suspect it isnt enforceable, what should i do now? I appreciate it will be another letter to Capquest, but what exactly should i say? All advice gratefully received.

Full page fax print.pdf

[Uptotheneck]

Its as enforceable as the rest of them:D, send the account in dispute letter to Capquest

 

 

Regards

 

 

David

[vint1954]

The agreement has none of the prescribed terms required.

 

Cap one are renowned for this.

 

Try sending this to Capquest.

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 remains subject to a lawful 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 a front page to an application form , which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated 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.

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, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

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

What is a true copy:

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.

[cashins]

Agree

 

david

[soli2008]

Many thanks for your replies. Really appreciated. I will write tomorrow. Thanks again.

[soli2008]

Reeceived a further letter in the mail last week in reply to the above. Will scan and post later today - should i post here or start a new thread?

[silverfox1961]

post it here. keeps things all neat and tidy

[soli2008]

post it here. keeps things all neat and tidy

 

OK - many thanks. I've attached the letter. I have never received anything from Capquest prevously other than the so-called agreement i posted previously. They make reference here to providing T&C's but I don't see how they can given that the document they allege is an agreement doesnt contain them. Also, is that correct that they don't have to remove data? Would relly appreciate advice on what i should do now please.

capquest081009.pdf

[silverfox1961]

Hi,

Can you elucidate a little on the original dispute with Crap1? Was the dispute serious enough to have kept the account with them and they shouldn't have sold it on to Crapquest.

 

Anyhoo, that letter is one of their standard replies and if you don't mind getting into a letter ping-pong match with them, you could point out the flaws in their missive

[soli2008]

Without too much detail, I refused to pay some penalty charges for supposed 'late payments'. I didnt agree with them and told them so. Their attitude was 'pay up or else'. This went on for a while at which point it was passed to Capquest. I did a CCA request back in 2007 when Capquest first contacted me (and received no reply other than a 'we are dealing with your request' letter) and the trail went cold.

I have no problem with a letter ping-pong, not at all. These people send out legal sounding letters with the hope of frightening people. Nice to be able to trump them by quoting the law back (I'm certain they have only a scant knowledge anyway).

Appreciate your help.

[vint1954]

OK - many thanks. I've attached the letter. I have never received anything from Capquest prevously other than the so-called agreement i posted previously. They make reference here to providing T&C's but I don't see how they can given that the document they allege is an agreement doesnt contain them. Also, is that correct that they don't have to remove data? Would relly appreciate advice on what i should do now please.

They miss the point. Perhaps they do not know the difference between Prescribed terms and terms and conditions.

 

I take it that you have sent the letter above. If so wait for their next move.

[soli2008]

hi - yes I did and i have posted their response.

[vint1954]

Account in serious dispute

 

Dear Ms Humphreys,

 

I am in receipt of your letter dated 8th October 2009 and note its contents. I thank you for your prompt response.

 

There seems to be a little confusion surrounding the documentation that you are required to provide. I am afraid that a copy of the front page of an agreement, does not satisfy the requirements of providing a true copy of an agreement, under s78 of the Consumer Credit Act 1974. You will be aware that such an agreement must include the Prescribed Terms within the signature document and not within a separate document or general terms and conditions. If the agreement that you have provided contains the Prescribed Terms, I would be obliged if you can advise me where these appear in the document supplied by yourselves. A set of detached Terms and Conditions will not surfice.

 

Regarding the continued addition of interest and charges, I would dispute the fact that while this account remains in dispute, that you are able to apply such actions.

 

With regard to continued processing of my data, you will be aware that the Data Protection Act, requires that a data subject gives express written consent for his non public domain data to be processed. Can you please supply me with the written permission that you claim to hold, to enable your continued processing of data relating to myself.

 

Finally, I note your intentions to susspend activity on this account, until such time as you are able to provide any correct agreement containing the Prescribed Terms, as previously noted.

 

Yours

[soli2008]

Account in serious dispute

 

Dear Ms Humphreys,

 

I am in receipt of your letter dated 8th October 2009 and note its contents. I thank you for your prompt response.

 

There seems to be a little confusion surrounding the documentation that you are required to provide. I am afraid that a copy of the front page of an agreement, does not satisfy the requirements of providing a true copy of an agreement, under s78 of the Consumer Credit Act 1974. You will be aware that such an agreement must include the Prescribed Terms within the signature document and not within a separate document or general terms and conditions. If the agreement that you have provided contains the Prescribed Terms, I would be obliged if you can advise me where these appear in the document supplied by yourselves. A set of detached Terms and Conditions will not surfice.

 

Regarding the continued addition of interest and charges, I would dispute the fact that while this account remains in dispute, that you are able to apply such actions.

 

With regard to continued processing of my data, you will be aware that the Data Protection Act, requires that a data subject gives express written consent for his non public domain data to be processed. Can you please supply me with the written permission that you claim to hold, to enable your continued processing of data relating to myself.

 

Finally, I note your intentions to susspend activity on this account, until such time as you are able to provide any correct agreement containing the Prescribed Terms, as previously noted.

 

Yours

 

 

 

Hi again - i sent the above letter a while ago now & today finally received a reply. Basically all they have sent me is a further copy of the 'application form' i posted earlier in this thread and then attached to that about five loose pages of 'terms and conditions' onto which they have simply printed my name & account number. Quite clearly these never formed part of the original paperwork but are rather just CapOnes T&C's that they have decided to end me, superinposed with my name, etc. What should i do now, as surely this is not what i have asked for or what they are obliged to supply? Again, all advice gratefully received.

,

[silverfox1961]

Hi

 

Well the account is still in dispute but they will say it isn't. Once they start to harass you for payment again, complain to them, Trading Standards and the OFT

 

OR

 

Write saying as they think that the agreement they sent you is enforceable, you would be happy to see them in court and let a judge decide.

Doubtful they will even try. Muppets

[vint1954]

Have you sent the letter in post #3