Capone/cabot v OH (disputed Acc)

[willtheywontthey]

received the very same cca 'application'.... sent SAR and got statements basically with some manual notes BUT they sent me somebody else's personal and financial detais.. bout 50 pages!! Mine missing. Wrote to Capital One and no reply whatsoever. Have written again and still not one reply to my formal complaint regarding the breach of Data Protection Act... have also informed third party who is aking complaint.. also to ICO

 

My main complaint in 2007 to the FOS was peanlty charges and phone calls. Capital One offered the penalty charges back but made no mention at all sbout my complaint about phone calls. I refused their offer as a result. More than 6 months later I get an FOS ajudicator who has asked for my latest documentation. i really am not very hopeful at all about the FOS supporting my claim to investigate and reprimand Capital One for making all these calls based on what other people have stated the FOS has said in the past... ie they can call us once a week... and this means try and try and try as much as they want until they get trhough..... I called it blackmail to be honest as Capital One have stated they will only stop calling if I a. pay or b. pay basically!!

 

Will keep you informed of outcome. Be aware that it is very true that Capital one hardly ever reply to letters ...........

[johndeevoy]

I was about to post mine up here and notied this thread. Mine too is the exact same. Why exactly is this unenforceable? Do the presribed terms have to be on the same sheet as the signature? Has anyone here been to Court and argued about this type of agreement where the terms are on another page?

[emmaf01]

What prescribed terms?

[johndeevoy]

Exactly what has been posted here - one sheet with a signature and other page with some terms. Are you saying that those terms are not "prescribed" terms as per the CCA1974?

[johndeevoy]

The first sheet (with the signature) states the following "I have read the terms and conditions setting out the agreement with Capital One and, if my application is accepted, I agree to be bound by these terms and conditions".

 

s189 of the CCA1974 states that

"a document embodies a provision if the provision is set out either in the document itself or in another document refered to in it".

 

It follows that if the prescribed terms are within some other document referred to in the signed document (in this case, the terms and conditions) then it is enforceable.

 

I'd love some comments on this as Im a bit of a novice. I have the exact same "agreement" as the original poster, as do a lot of people on here.

 

Why exactly do any of you believe this to be unenforceable?

[johndeevoy]

What I would add here however, is that to properly fulfill a CCA request the creditor must supply a full copy of any other document refered to as part of the signed agreement. In this case, a full copy of the T&C at the time.

 

Cap1 have clearly not done this in this case (or mine). The 2nd sheet is not a full copy of the T&C (no mention of late charges for example). IMO they have not fulfilled the CCA request and Ill be putting them on notice of default (but perhaps not spell it out to them exactly why they have not properly complied hehehehe)!!!!!

[emmaf01]

Hi John- do you have your own thread where we could link to, specifically about your situation?

 

Look at this thread to see about what makes an agreement enforceable.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

[johndeevoy]

I didnt want to start a new thread for this as its the exact same documents that are posted here at the start of the thread. No point goin over the same stuff in different threads if it can be avoided.

 

I have checked the link thanks emma. There doesnt seem to be a definitive answer out there for this which is strange as a lot of people seem to get this exact response from Cap1.

 

Ignore POST 32 from me as I found answers in another thread. It appears that the enforceability of this is whether or not Cap1 can produce an original 2-sided document with the 2nd sheet (terms) on the back. In any event, they are currently in breach of the CCA request by not supplying the full T&C. I'll keep them at bay on this point until someone can (hopefully) come up with an strong argument (or case law) regarding the enforceability issue.

[beachcomber60]

Who's hijacking my thread then?

 

Tried ringing TS yesterday, follow up to my letter) their phone was ringing & ringing & ringing etc etc - CP1 now standing at 136 calls/34 days.

 

Re: cca unenforceability, for starters there is no credit limit/APR or charges stated. In addition they are about to run out of time with my SAR request.

 

The screw has turned, as I drive approx 300 miles at night I have been forced to take time off due to lack of sleep ( my employer has quoted health & safety). Managed now to block their calls but cannot do anything about their off shore call centre.

[johndeevoy]

"Re: cca unenforceability, for starters there is no credit limit/APR or charges stated".

 

If you look at the 2nd document there is APR and breakdown shown in a table. Charges are not a prescribed term according to CCA1974 so its fine to have them detailed in a separate T&C booklet.

 

I would agree that there is no credit limit shown, simply a statement that says it will be notified and is subject to change (section 2 of the 2nd document). IMO, if MBNA show up to Court with a double sided document with those terms on the back, your only possible defence is that there is no credit limit shown. It seems weak to me but at the end of the day the CCA regs are absolute, credit limit is a prescribed term according to the info from Emma's thread above and if its not specified in the "4 corners of the agreement document" then a Court should rule it unenforceable.

 

Anyone else have any thoughts or experience in relation to this? Arguing unenforceability solely because no credit limit is specified within the agreement?

[beachcomber60]

Hello John, Thank you for your comments, my remark was a lighthearted comment in reply to you using my CCA docs as an example to your own cca after Emma suggested that you start your own thread detailing your own situation.

 

I have my own issues with Cap.One and I wouldn't like your situation with them to get confused with mine.

 

Emma has been an absolute gem since I started posting and to be honest brought me back from the brink of total despair.

 

Jim

[out of cash]

HI beachcomber60;

 

The only real sure way to stop these calls is to make a complaint to bt or whoever your phone line is with and get a special protected number due to harrasment that stopped them dead in the water immediately worked for me also changed mobil no one has phoned from those dca idiots in 18mths:D

 

good luck

 

ooc

[emmaf01]

Hi Beachcomber60- I think Capital One are officially taking the **** with these phone calls. And now, thanks to your boss, I think you have a clear cut case for harassment.

 

I've PMed you with an idea.

[johndeevoy]

Im going to start my own thread to discuss the legality and enforceability of this type of agreement. I'm really interested in any opinions about my post #37.

 

How do I upload scans like the original post here? Do I need to upload to an imagehost site? I've uploaded some scans to here as attachments but cannot find the option to put them into a post. Thanks all and goodluck Jim. I'll post back here if I get any further solid info re: enforceability.

[beachcomber60]

Capital One Interrogation Unit contact numbers - Kommandant E. Renshaw

 

If you have caller display these are the numbers CP1 will use to harrass you :- 08004220280, 08004220294, 08004220295, 08004220293, 08004220292, +8004220292, 08004220278, 01158431401, 01158431415, 01158431411, 01159938310, 01159938302, 01158431407, 01159938301, 01159938311, 01159938304, 01159938303, 01158431413, 01159938308, 01158431403, 01159938306, 01158783300, 01158431405, 01159938309, 01159938305, 01158783301, 01159938307, +1159938303, +1158431407, 01158431409, +1159938308, +1159938309, +1159938302, also use number withheld & unavailable out of area. (All logged day, date & time).

[emmaf01]

Yep- I'm getting the Unavailable number at the moment. I just haven't managed to be in to berate them about it yet! I still can't believe what they are doing to you, Beachcomber.

 

Are you still answering- what is your method with them at the moment? And how are you holding up?

[banker_rhymes_with]

Here's one missed from the list above:

 

08005610415

 

They hit 720 Logged calls with me Today! That does not include the Calls before I started logging all of this.

 

Once I S.A.R - (Subject Access Request) them, that's assuming they will be dumb enough to provide the past Call Data, I think I could top 1,000 Calls from them.

 

One day, soon, I will ram this up a CapitalOne banker...very firmly. Police are aware, and I am steadily working on getting a name for the low life f-wit at CapitalOne who has authorised all of this.

 

I'm sure he/she/it thinks this is all jolly clever.

 

Cheers,

BRW

Edited September 18, 2008 by banker_rhymes_with
Can't Spell!

[beachcomber60]

Mornin' Only five 'unavailable - Out of Area' (probably India) calls today, I did answer the first call and when asked for security checks I told him to bog off - if they cant display their number I aint passing over personal details - he seemed shocked and hung up.

 

Had a call from OFT in response to my TS complaint, advised to write to CEO of cap1 and point out that the level of calls are totally unacceptable following a request to comm. in writing only. What helped was the fact that following 'that letter' calls have INCREASED each day. So must point out that calls must cease forthwith, failure to do so will result in a complaint going before the FOS.

 

Have been given a reference number to report back to OFT if instructions are not met.

 

All our other creditors have accepted lower payments and froze interest thanks to NDL budget sheet & all without any of the cr*p like cap1.

 

Have received S.A.R - (Subject Access Request) and not one mention of the phone calls that they have been making, charges were disappointing so may decide to go the unenforceable route and tell em to stick it where the sun dont shine.

 

So overall a positive day - POSITIVE MENTAL ATTITUDE - after having a few days off the world aint such a bad place after all (well apart from these morons!)

[banker_rhymes_with]

Have received S.A.R - (Subject Access Request) and not one mention of the phone calls that they have been making

 

That's interesting, and about what I am expecting back from my own S.A.R - (Subject Access Request).

 

If their clever Auto-Dialling Threat Machine is clever enough to call people several times a day, and vary the Calling Line Identity (CLI) of the number it calls from, and can vary the numbers it Calls, and can vary the CLI used to the same number called...

 

...then it's clever enough to make a Log of who it does Call.

 

However, it seems that CapitalOne think that Log is for their use only, and not something they wish to provide in a SAR.

 

If they omit that, it makes me wonder what else are they omitting from a SAR?

 

Cheers,

BRW

[beachcomber60]

Help Urgent advice requested.

 

Cap 1 have served default notice even though the account is in dispute and subject to formal complaint that hasnt been resolved.

 

I am very angry as they (for the second time) contradict themselves, in a letter provided with my CCA they state that 'we would not issue a default notice if we had received our I&E form', they have already received it twice and have acknowledged receipt. CCA seems to be unenforceable, didnt originally want to dispute the debt just want them to get their heads outa their backside and accept the pro rata payments cause there aint no more available & I aint handing over confidential documents that they are not entitled to have.

 

Dont honestly know whether to make them take me to court and defend my corner (plus hopefully prove to the Judge what absolute sh*ts this company is and produce telephone logs & letters demanding bank statements etc etc.

 

Spoke too soon yesterday about feelin the worlds a better place!

 

Help needed in which way forward.

[banker_rhymes_with]

Hello Beachcomber60!

 

It's hard to know what they are up to, to be honest.

 

If they want to Sell the alleged Debt, then they need to Default you so they can extract themselves from their side of the alleged Agreement. They also have to Default you to take you to Court, so it's not clear yet what their real motive may be.

 

Once Defaulted, then they can Sell it, provided they Assign it correctly to the next low life down the banking food chain.

 

Likewise, it could just be a Threat aimed at getting you to call them and pull out your Debit Card (they are always keen to see that).

 

If you can, maybe Scan the Default Notice and post it here with any Private bits edited out. Then we can all take a look to see if it is valid or not.

 

Likewise, check the figures, have they stated a correct amount? If the alleged Debt is partly made up of unlawful charges, then any Total they claim is owed cannot be accurate. Likewise, even if they have stated an arrears Total, how can that be accurate if the arrears are based on a Total that is itself inaccurate.

 

IOW, if the alleged Debt Total is wrong, then the Monthly Payment needed will be inaccurate, and any missed Payments will have been overstated, so that means any arrears will also be inaccurate.

 

It has to be your call, but my temptation would be to sit back and let them make all the moves from here. Just gather the evidence against them, Log Harassment Calls, and watch for them making mistakes. Read up on CAG what has happened to others, as in many cases the same things will happen to you in about the same order.

 

Soon, you will anticipate every next move they make, and will be ahead of them.

 

If they do go to Court, the second they try, read the Thread I mentioned above, i.e.

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

That's to let you jump in from the very outset to make them show you the Agreement they claim they have...i.e. before a Court Track has been allocated. This option is not normally available if Small Claims Track, so might be a useful tactic to fire at them if they do push this.

 

At least then you will see what they have before the Court stage.

 

I'm just trying to point you towards further study. I would not get too upset at the moment, as it's nearly impossible to stop these bankers doing whatever they feel they have to do.

 

They are never reasonable, so you just have to plan ahead and field any wobblies they throw at you as they come in.

 

I hope this helps.

 

Cheers,

BRW

Edited September 18, 2008 by banker_rhymes_with
Typo plus added Text to aid clarity.

[beachcomber60]

Thanks for the info, should I write and tell them that have still not complied with my CCA request, and remind them that the account is still in dispute.

 

Will scan notice later this evening.

 

Thanks in advance

[banker_rhymes_with]

...should I write and tell them that have still not complied with my CCA request, and remind them that the account is still in dispute.

 

Yes, I think that would be wise. But do send it via Special Delivery, or they will deny ever having received it.

 

But that would be sensible, as it slips in the fact that they are wrong to issue a Default Notice. You would be right to hit them with this while they still have time not to go ahead with the actual Default.

 

You have to accept that if they intend to lodge the Default, that is what they will do. But, having a good toot at them between Default Notice and Default, will aid your case if/when this either goes to Court, or if/when you make a Complaint about them to the Financial Ombudsman Service (FOS), Trading Standards (TS), Information Commissioners Office (Information Commissioners Office), etc etc.

 

I regret it is a sad fact that once you question a banker's Right to make you Pay, they will not play nice or fair. They won't do reasonable either.

 

Cheers,

BRW

Edited September 18, 2008 by banker_rhymes_with
Can't spell.

[beachcomber60]

*BUMP*

 

Further Advice Please

[emmaf01]

They still haven't complied with my CCA request- the keep saying they haven't received anything- and after their phone call this evening (which was the worst ever) I will be writing to them. I will be enclosing a copy of my previous request, details so they can check track and trace, and a serious complaint about the staff member I spoke to tonight.

 

I would probably advise you do the same Beachcomber, but you are doing so well with your complaints as it is, far better and more advanced than me! I still can't believe how angry they have made me. It was asking why I hadn't paid them for six months before I am disputing the account, when I had paid twice during that time and (as is in the notes on the account) they know the rest of the time I was in hospital. Of course it just made me shout down the phone "what the hell has that got to do with you?"

 

I'm just off to write angry letters complaining and asking for all my charges back. I really hate them tonight and I will never pay them anything until they provide an enforceable CCA. ANd even then they'll get £1 per month.

 

Sorry about the rant.