Capital One CCA - new tricks?

[Justin Tyme]

Hi Folks!

 

I do hope someone can help me with this.

 

I have started a claim against Cap One recently after being inspired by this forum.

 

Background: Opened Cap One account in March 2002. Never missed a payment and all up to date now. Have six other cards, all up to date, and so far a perfect credit score all round (although rather over borrowed!).

 

Need to preserve my credit rating so treading carefully but disgusted with Cap One's new 34.9% rate, as bad as some loan sharks!

 

So I sent the request for agreement letter on 15th September. Eventually got their reply (dated 23rd Sept) on 2nd October, well past the 2 + 2, but at least they replied. But its not what I expected.

 

Their covering letter states:

"You requested copies of the executed credit agreement (which I did) and statement of your account (which I didn't) under section 78 of Consumer Credit Act 1974.

 

Please find enclosed a copy of your credit agreement as requested. In accordance with section 78 of the Consumer Credit Act 1974 and the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement, and if any terms have been varied, then the copy agreement will include the updated terms.

 

In addition, your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancelation Notices and Copy Documents) Regulations 1983.

 

The status of your account, as at the date of this letter, is currently open and up to date with payment. ...... blah blah blah..."

 

Now, first of all, what they've sent me with the above letter (printers ref C1FSALET/0208) is the following:

a) Another undated letter (printers ref RITCSLET/0809) headed ' Terms of your Cap One Credit Card Agreement' saying 'Thank you for your recent request. Please see overleaf for the current terms of your agreement with us. For the rest of your terms and conditions, please see the leaflet enclosed ........'

 

overleaf is a photo copy or print out of some bumf amounting to half a page headed 'Credit Card Agreement Regulated by the Consumer Credit Act 1974' which I'm sure is only part of their latest terms.

 

b) A folded A4 sheet entitled 'This is a copy of your agreement for you to keep' (Printers ref T&CS/0109) which is undated and unsigned by anyone (not even a place to sign)

 

and c) al leaflet entitled 'Please tell us if we make a mistake..' !!!!!!!!!

 

Now seriously, I'm sure these are just delaying tactics because they dont have a copy of the original signed agreement - but how should I proceed? Also, what's this Regulation 3 they refer to?

 

Grateful for anyones help and advice.

 

PS Have an ongoing claim with MBNA through an agent (Credit Clear Services) which, although they say they have found breaches, is taking an age! Beginning to wish I'd done it myself!

 

Justyn

[cerberusalert]

I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[Justin Tyme]

I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974. .........

 

 

Thank you so much for your rapid response. Yep, this draft letter seems absolutely appropriate. I want to keep the momentum going on this one so will try to get it off today, what with this postal strike looming! Many, many thanks. Will post any developments.

 

Justyn

[Justin Tyme]

Hi again!

Just to confirm I have sent off a carefully modified version of the draft letter as supplied above and will await developments! Must say I feel elated and nervous at the same time. At least I've started the ball rolling.

 

I just wonder if anyone has any firm information on this 'Regulation 3' CapOne have referred to? ie:

 

"....your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancelation Notices and Copy Documents) Regulations 1983." see my earlier post.

 

Can this be right???

[cerberusalert]

I just wonder if anyone has any firm information on this 'Regulation 3' CapOne have referred to? ie:

Yes the Act does state that they can omit the signature, but this goes back to a time before photocopying etc was prevalent and copies of documents had to be done by hand & of course it's illegal to copy someone else's signature.

 

So, with modern technology it begs the question, if they have an enforceable signed agreement why don't they provide it?

[Justin Tyme]

Yes the Act does state that they can omit the signature, but this goes back to a time before photocopying etc was prevalent and copies of documents had to be done by hand & of course it's illegal to copy someone else's signature.

 

So, with modern technology it begs the question, if they have an enforceable signed agreement why don't they provide it?

 

Thanks for that. Very interesting! Most grateful for your advice.

 

I think CapOne are clutching at straws and using this simply as a delaying tactic.

 

What they sent me was clearly not a copy of ANY agreement, just a bunch of standard letters and leaflets which I reckon in itself would be evidence that it's unenforceable since it's not on one sheet. Also, no reference on them to me personally and no signatures from either party.

 

I feel quietly confident but have given them a reasonable 30 days to respond. That plus the 12+2 which they exceeded in anycase seems long enough to satisfy any court? If they can't supply, do I go straight in for a zeroing of the account and is there anything else I should claim for?

 

I've never missed a payment so no charges involved and ppi was never taken out.

[Justin Tyme]

And now this! I'm not sure if this ruling actually applies to proven unenforceable debts? Seems to affect the period of 'uncertainty' during which a default has been registered ?

 

Debt-free loophole closed off by High Court

 

Alan O'Sullivan, This is Money

12 October 2009, 12:41pm

Reader comments (25) | Chat | Vote | Calculate

 

A recent landmark High Court ruling has effectively scuppered the ability of indebted people to escape paying back their loans without serious consequences.

Fair play? Borrowers have effectively been forced to pay back their debts.

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The ruling means that if borrowers manage to escape paying their debts on legal technicalities, the lender could still mar their credit history with a 'default' notice.

 

This would remain on file for six years and prevent them from obtaining further credit.

Although the borrower cannot be pursued by bailiffs, this black mark renders the legal argument that they can escape their debts without consequence useless.

It effectively puts them in a similar position to having a County Court Judgment against them. Many may decide to repay the loan rather than have their credit file ruined.

The result is a blow to the multi-million pound 'claims management' industry, which has ballooned over the past two years by helping indebted borrowers to escape repaying their loans on the grounds that the original agreements are 'unenforceable'.

Approximately 100,000 people with claims to have their debts written off may now have to pay up and many of the UK's 3,000 'claims management companies' (CMCs) should find their success rates for these claims seriously affected.

The High Court case involved an RBS customer, Phillip McGuffick, who used a CMC to argue his £17,000 personal loan from the bank should be declared unenforceable on the grounds RBS was unable to provide a signed copy of the original agreement, a tactic used by most CMCs to clear their client's debts.

If the bank cannot produce the original signed agreements, the debt can sometimes be written off. If the agreements are produced, CMCs will often argue the agreement does not stand up on the grounds that other vital information is missing.

 

 

For a more detailed breakdown of how this may affect you, read Q&A: Can I still have all my debts written off?...

 

 

 

In the High Court case last week, RBS admitted to being unable to provide the relevant documents and that the loan was unenforceable. However, Mr McGuffick complained that the details of his debt should not have been passed on to the three main credit reference agencies, Equifax, Experian and Call Credit, which logged it as a default.

The ruling pertains specifically to the period when a customer's loan is under dispute, the 12 days plus a calendar month lenders have to provide an agreement after it has been requested. Customers must now continue to make their payments during this period or the lender has the right to pass on their details to a credit reference agency.

It does not state definitively whether lenders have the right to mar a customer's credit file if they fail to locate the agreement within the deadline – and therefore fall into a 'period of non-compliance' – allowing the case to fall in the customer's favour. However the judge hinted that lenders may be able to pass information to credit reference agencies whenever they chose.

He said in court documents: 'Of course, it does not follow from the fact that the motive for reporting during the period of non-compliance is an entirely proper one that such reporting is permitted under the law.'

 

 

 

 

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Daniella Lipszyc, a solicitor specialising in financial irregularity with Manchester-based Ultimate law, believes up to 100,000 cases could be affected, came to the defence of borrowers.

She said: 'I come across lenders all the time who say that they cannot find the documents when the actually realise there's an inherent fault in them. Then they threaten the customer while they are supposedly looking for them and the customer is sometimes scared into paying. I believe today's ruling, although vague in parts, allows them to continue doing that.'

She also came out in defence of borrowers: 'This is manifestly unfair. Lenders can admit that they don't have a signed agreement; and be fully aware they cannot enforce the agreement in a court of law, yet still refer the case to the credit reference agency to essentially force the customer's hand. 'This is no different than them sending round the bully boys – it's complete arrogance on the part of the lenders who, in many cases, hold their hands up to breaking their statutory and contractual obligations, yet still run to the credit reference agency as a means of getting payment.'

[The GodMother]

well to me it seem rubbish as they cant even get the rules right.

 

The ruling pertains specifically to the period when a customer's loan is under dispute, the 12 days plus a calendar month lenders have to provide an agreement after it has been requested. Customers must now continue to make their payments during this period or the lender has the right to pass on their details to a credit reference agency.

[Justin Tyme]

well to me it seem rubbish as they cant even get the rules right.

 

Hmm! Rubbish or not, this worries me. In relation to my earlier posts, see above, I've just written to CapOne to issue a default notice since they seemed unable to produce a proper agreement and have told them I wont be paying them any more unless they come up with the goods.

 

However, this ruling might mean they could log a negative credit report on me, even though they don't have an enforceable agreement. Agree it doesn't seem right. But after all it was a judge laying down the law here and we can't afford to ignore it.

 

My immediate problem is: do I follow through with my threat and not make any further payment to CapOne? Unlike some caggers, my credit record is squeaky clean so far (although I can't keep the payments up much longer due to illness) and I need to keep it in tact for a future property deal.

 

I've got a week to decide whether to pay another £95 (and not eat for a while!) to keep things above-board.

 

Wish it was just this account to worry about, but I've six others, all draining me at the same time. Got a claim with MBNA ongoing via an agent but they haven't moved on it for two and a half months now. Keep telling me their barrister is cross-referencing various court decisions before acting. Wonder if they are just going to pull the plug on their business and take my £295 with them??

 

And it all seemed so good!!!

[AA99]

Justin, don't pay them, don't talk to them on the phone, don't sign anything in your usual signature, and keep everything in writing, recorded delivery:cool:

[The GodMother]

the law that i highlight was partily repealled under the CPUTR2008. The 30 days no longer exist.

[monica74]

I ve got the same problem, a clear credit file but can't keep up the payments as most of them have put the interest rate up to ridiculous amounts. It angers me so much that the companies get away with doing what they like and charging disgusting amounts of interest knowing now people can't move the debts.

 

My sister has paid Cartel to try and get her egg loan wiped but after months of nothing chased them up, they told her that they are waiting on cases at the High Court but did say it was looking good. I just do not know if I have time to wait as have hardly any money left to keep paying, it so difficult and scary.

[AA99]

http://www.consumeractiongroup.co.uk/forum/capital-one/226293-capital-one-group-fos.html