Capone/cabot v OH (disputed Acc)

[beachcomber60]

No further updates on this? Now totally confused!

 

Cap1 now playing silly baggers - now making silent calls, me thinks its now time to involve BT regarding this

[AA99]

I have been so pre-occupied with my 3 MBNA cards that I haven't yet started on my Capital One card, however, having learnt an awful LOT of information now from the MBNA case whose backs I am now HOT on, I made a record of a phone call tonight from Crapital One:

Very foreign accent "Can I speak to Mrs ***** please?"

Yes certainly, who's calling?

Karen

Karen who?

Can I speak to Mrs ********** please?

Yes, who's calling? Karen who?

"I'M NOT ALLOWED TO TELL YOU THAT"

Well, goodbye then, you can't talk to Mrs **********, send her a letter

:mad:

 

Is that not a breach of the Data Protection Act or SOMETHING ?!!

Edited September 23, 2008 by AA99
after thought

[johndeevoy]

The prescribed terms were on the 2nd document that you had scanned up. List of charges were not a prescribed term prior to the 2004 regs which came into effect on 31st May 2005.

 

Yes, it is an application form, which if accepted by the creditor also doubles as the credit agreement.

 

Dont get too downhearted by this, its only my opinion and there are others on here that have more experience than me. I do have a lot of legal experience but none fighting any of these types of cases in court, so bear that in mind.

 

The creditor can always make mistakes with court procedures, dates and it appears from this forum that Cap1 seem prone to this (non-submission of ordered documents etc).

 

May well be worth fighting so don't worry about it. You have nothing to lose by fighting it anyway.

 

For your info, I had the same type of agreement sent to me after my s78 request. I'm putting them on default until they can provide the T&C booklet refered to on the signature page.

 

Good luck!

[johndeevoy]

Have you checked the charges amounts- unfortunately the documents are no longer up on this thread to look at, so I can't.

 

And are they up on your thread, John?

 

Sorry Emma, I've had major PC problems at home and just got up and running this evening. I'll be making some scans and new threads as soon as I get a chance.

 

FYI, the charges were not on the agreement (they are contained in a separate T&C booklet which Cap1 did not send out). Other prescribed terms (APR, how they will assign a credit limit, how to pay) are on the 2nd page, which if on the back of the original signature document makes it enforceable IMO.

 

As I understand charges were not a prescribed term as per the 83 regs but became a prescribed term alongwith very strict rules in relation to the layout and display of certain information in the 2004 regs.

[ukaviator]

He he. . . .

 

I do not speak to anyone foreign unless i am on Holiday or i know them.

 

Most of the time they just ask you to call Capital One if you won't cooperate with them, and most of the time i forget. . .

[lexis200]

Yes, it does mention "application for credit" but it is also clearly marked as an Agreement under the Consumer Credit Act 1974. There is a 2nd photocopied page also marked as an Agreement which contains the prescribed terms. I have the exact same two documents sent to me by Cap1. I have posted here already that if the 2nd photocopied page is on the back of the original signature page (or the creditor can prove to the Court that it somehow clearly links to the signature page) then it is likely to be enforceable.

 

IF, that's the important bit. IF the back of the page is the second page of Beachcombers application. Are there any reference numbers on the pages to link them? I can't find any mention of it in the thread if there are?

 

Is there anything to suggest it's a copy of the same document - crease lines, fonts used etc?

 

If not, then who's to say it's the back of your 'agreement' and not just some standard one they have lying around?

 

I think emma's point regarding charges may have been that banks often send new t's and c's out rather than the originals, which technically is what should be sent. The charges for late payments etc are likely to be different to what you agreed to, after the OFT's ruling made them all reduce to £12, so this is a handy way to check if they've sent the right ones.

[beachcomber60]

thanks lexis200, they sent t&c photocopied on the back of the 'alleged agreement', there are fold marks on the t&c's that are obsent from the actual 'agreement' and as you mention nothing linking the two together. They also enclosed their latest t&c's which does state the £12 charges. I am still of the opinion that is not enforceable ( hope I'm right)

[lexis200]

That sounds pretty iffy to me.

 

I'm having an issue with MBNA at the moment as they've sent what looks like an enforceable agreement with all prescribed terms, but a couple of posters have niggles with it and are wondering if it's a Blue Peter job. Trouble with mine is that the terms are shown on the page that OH signed. Now they've also sent current t's and c's, which according to the regs plainly need to be the originals, but for my specific one as the prescribed terms are shown in the correct place, I can't really argue on the back of that alone.

 

For you though, you've got an 'agreement' that sounds like 2 different documents photocopied onto one page, plus current terms. If it's an application which can be used as an agreement, I'd really want to know how they can use it as an agreement if they can't prove the two sides came from the same piece of paper.

 

If you're up for it, I'd suggest sending off an SAR request. This was suggested to me by another poster, who ended up with 2 different 'copies' of her agreement, thus putting the bank in a bit of an awkward position. If you do though, make sure you specifically request the CCA to be included as otherwise they may well leave it out. I have a good template (again from another poster - thank you!) if you would like it.

 

I should also point out that I'm in no way an expert on this, and anything I've said is picked up from the superb advice given throughout these forums, so please don't take anything I say as gospel; I'm just giving another opinion for you to think about:)

[beachcomber60]

Thanks for that, I have already SAR & it didn't include copy of the "agreement" along with one months statement missing & no mention of all the letters sent & their phone conversations apart from one.

[lexis200]

Well that's no good! Have you got anywhere with getting them to send those bits, as they know full well they have to?

 

If not I'd get a complaint in and slip in that the CCA should have been provided within it too.

 

If you've done that and they're still not complying, I think you need to complain to TS/OFT/FOS (sorry don't know which one it would be:confused:).

 

As it stands at the moment though you could still write and tell them you want to see a copy of the original along with the original terms, not 2 separate pages and current terms - see what they say to that?

[emmaf01]

Sounds like good advice from Lexis200. A DPA non-compliance letter (do you think there will be charges on the missing statement like there was on my OH's missing statement?)- and a letter picking their CCA apart.

 

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.( this date should be 12+2 WORKING days after you sent the request)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

Big thanks to 42man for that- mine is going off today.

[beachcomber60]

Wow - thanks Emma (& 42man)

[emmaf01]

Mine's gone off special delivery- they'll probably ignore it again, so I thought the extra expense was worth it! And I got my SAR in finally, even though I'm only missing about three statements.

[beachcomber60]

Good luck, will do mine tomorrow.

 

Next stage is to speak to BT as we are now getting 'silent' calls from them, they ring we answer and they then hang up (bloody annoying when your trying to watch Corrie (he he)).

[AA99]

Hi good people

 

Have just read through this thread and we are in EXACTLY the same state now with Crapital One! I am sending off a combination of an SAR and CCA letter, together with a Harrassment/Writing only letter. I have just done this, at last, with the MBNA in my other thread (AA99 v MBNA). The last thing I did on 08 September was send a covering letter regarding changes in circumstances, their charges, etc and enclosed an I & E Form showing a payment of £20 p.m. to each creditor alike on the condition that interest is frozen and charges on charges on charges has stopped, leaving a surplus of £19 p.m. They have not acknowledged this letter.

 

Telephone call yesterday, 1825hrs, asked for name,

Karen,

Karen Who?

I'm not allowed to give you my name

Then Mrs Me can't talk to you, good bye !

 

Telephone call today, 1312hrs, asked for name,

Nikki

Nikki who?

Is this Mrs ****** ?

Nikki who?

Very foreign accent, Nikki Faypon

Wrote to your company 08 Sep, waiting for reply, writing only,

Good bye !

[AA99]

ps. Got another thread going AA99 v GE Money Car Loan but different kettle of fish because it was a car bought from Carcraft for 5 years at £212.42 p.m. Defaulted, and a late payment in 2 months and the charges and the charges, £30 default, £15 admin fee, each time have put me £90 a month in arrears. Settlement figure is over £6k and value of car is £2k. Offered by them to sell the car and continue a £4k loan............... doesn't sound like a viable option to me...... anyway, check it out and feel free to contribute if you are in the same boat, won't charge you LOL

[emmaf01]

BT should be able to block some calls, but with so many numbers, I don't know how it works. Plus don't block until you have seen our "mutual friend" and got his input- after all, every call may count!

[willtheywontthey]

I am now onto FOS adjudicator no 2 within about a week! He's started by letting me know which of the complaints the FOS can do nothing about and kindly promised to let me know any more of these once he'd reads all the details he had. Main complaint is telephone calls, late payment markers, no cca, no sar (oh he's already said DPA not to do with them!!) and now a default letter.

 

I will update here if there's anything relevant to this thread in their findings. (if any!)

[beachcomber60]

Mr 'Silent caller' finally found his voice yesterday (after six other calls for the day)

 

Hello

CP1: Could I speak with Mr X

Yes speaking

CP1: I am calling from capital one I need to speak with you about your account but first security questions please

How do I know your from capital one?

CP1: Because I am sir that is where I am calling from

But your hiding behind an unavailable out of area number so you could be anyone

CP1: Trust me Mr X I am calling from capital one

No sorry - cant be too careful these days what with identity theft, ring me back and show your telephone number and maybe just maybe I will consider talking to you ok

CP1: No sir I cannot do that

Why not

CP1: I am not allowed to

Then I dont believe you are who you say you are

CP1: OK .................. Hung up!

[lexis200]

:lol:

[emmaf01]

You could always ask them to prove who they are... by answering information only you and Capital One know.

 

For instance, when your account was opened, current balance, card number and the answers to your security questions. Always good if you are recording the call and they comply!

[emmaf01]

And I hope you saw this-

 

BBC NEWS | Business | Silent calls fine for Barclaycard

[AA99]

Once again thanks for your advice, having a tough time today four calls in four hours - two to my home number and two to my works number, near breaking point[/quote

 

Haven't had time to trawl through your thread entirely but I am exactly in the same position as you, keep on keeping on, have had much encouragement on here

[AA99]

I am now onto FOS adjudicator no 2 within about a week! He's started by letting me know which of the complaints the FOS can do nothing about and kindly promised to let me know any more of these once he'd reads all the details he had. Main complaint is telephone calls, late payment markers, no cca, no S.A.R - (Subject Access Request) (oh he's already said Data Protection Act not to do with them!!) and now a default letter.

 

I will update here if there's anything relevant to this thread in their findings. (if any!)

 

 

After what you've been through, I would write one more 'nice' letter stating that you've had a guts-full and you want to take them to court. There is a template letter for such a thing, just modify it to your wording. Watch this space ;-)

[beachcomber60]

Sorry, wasn't around 'puter yesterday (wedding anniversary), I had absolutely no intention of answering his security questions - just glad he actually spoke confirming that it is cap1 making the silent calls (5 yesterday).

 

With regard to BC that is good news hope others will take note, online complaint made to OFCOM (re: above company) after reading about BC.