what should I do now - if anything

[flooz]

No PPI and only a couple of late payment charges, so not much of a reduction possible there.

 

I think it's the stance of Cap1 keep saying "your agreement is fully enforceable" that concerns me. I mean, I don't know if it is or isn't, I've just relied on help from the caggers. But of course, there's also the issue of the T&C's being provided under the CCA request being different to what now appears on the reverse of the 'reconstituted' agreement. I'm still unsure whether they do or don't have an original agreement.

 

I wonder if Laura ever got a response to her request to inspect the document in person?

[Dotty50]

Well they certainly won't tell you it's unenforceable flooz!

 

It's being prepared to argue that what they have produced is not correct. I had 3 lots of T & C's from Cap 1, all different and none that tallied with the original terms. It was apparent from my SAR that it started on a introductory rate but non of the T & C's reflected this.

 

You can write and just ask them if they hold the original executed agreement, but I guarantee they will not answer the question!

 

Not seen any post from Laura recently but she has had a lot to deal with.

[flooz]

I hope Laura's ok, she sure has had a tough time of late.

 

I guess I know that Cap1 aren't going to admit to anything, and I refuse to tell them what they've done wrong. In fact I have sort of prepared another letter to them, pretty much saying that much. Thought I'd include something along the lines of 'the only way to settle this argument is to inspect the document in person'. I think Laura did something similar, I wonder if she ever got a positive response.

 

I think I get confused by it all and worry too. I want to reach an amicable conclusion, but unless they admit their faults, i'm not going to be able to do so.

 

Sometimes it just all feels 'so unnecessary' - if you see what I mean.

[flooz]

Any thoughts or comments on the following please?

 

quote....

Thank you for your letter of 14th October 2010 and I apologise for the delay in replying.

Intriguingly I do not appear to have your letter dated 30th November 2010 which you refer to!

However, in referring to the third paragraph of your letter. It is not for me to point out that mistakes that Capital One have made, however those mistakes and discrepancies will be brought to the attention of the Court should you choose to bring action against me. Rules and Regulations are in place for Capital One to adhere to.

I am fully aware that a reconstituted agreement satisfies your obligation under a s77/78 CCA request, however, as I have previously stated, a correctly executed agreement must be presented to allow any Court to enforce the same.

As my letters appear to be predominantly unread properly, with standard responses being sent that do not address my issues, it is becoming very difficult to converse with Capital One.

Given that photocopying documents allows for a host of errors and omissions to be altered, I believe that the only solution would be for me to inspect the original document myself. To this end, please confirm when it would be convenient for either myself, or a representative of my choice, to visit your offices to inspect the original document.

Please do not respond with your standard paragraph “....we will not be entering into any further correspondence regarding the provision of copy agreements.” The whole point of correspondence is an effort to draw this matter to a satisfactory conclusion

....end quote

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement&p=3193881&viewfull=1#post3193881

 

Or you could try something along these lines Flooz

[flooz]

Thanks Dotty. Are you familier with the letter that is being sent by PM to people? Is it of the same genre?

 

I'm wondering if I would be a bit 'premature' with that stance, at the moment they're not threatening any legal action, just saying that they will defend if I take action (I've got no intention of doing that, as I'm aware that there was a case {can't remember which one} which basically says that the onus to prove anything is on the claimant, not the respondent).

 

Having said that, I'm absolutely positive I have previously requested them to confirm in writing if they do not have an original correctly executed agreement, which they have ignored. As you know, they just keep telling me that they have complied with my CCA request (providing a reconstituted agreement). the wording of such is more akin to an application form, and the separate T&C's Cap1 say are the 'original', but which are totally different to what appears on what was sent under the SAR.

 

I'm finding it difficult to just sit back and wait for the next stage to happen, and feel that I should at least keep responding to their correspondence.

[Dotty50]

Yes Flooz this is the letter, which is why Priority1 posted it on the open forum, I would have a read of her comments on the thread.

 

I know you are not comfortable leaving things, but I think there comes a time when you can do no more and you have to sit back and wait, or you pay them what you can afford.

 

Are you getting any letters from Cap 1 or DCA's?

 

I hear nothing now.

[flooz]

Thanks Dotty. I shall read some more soon.

 

At the moment (and I'm probably tempting fate) the only letters being received are Cap1 responding with the usual 'your agreement is enforceable blah blah blah'.

 

I have to admit, it does make me uncomfortable, probably because I find it difficult to follow all the threads and make sense of some of them. Maybe I just haven't quoted the right regs at Cap1 yet, so will look into this CPUTR 2008 too.

[diddydicky]

you might need to amend your letter slightly as, in order to comply with the overriding objectives- it is your place to point out the faults in their claim rather than wait until a court hearing to do so

 

once you have outlined their failings THEN the ball (and hopefully costs ) will be in THEIR court if they continue

 

the general rule is to make the claimant aware of points of law and flaws in their case before trial- the court will then take the view= when deciding costs- the fact that as an organisation with the best legal and financial resources at their disposal- they chose to ignore those points/facts when they had been previously made aware of them

 

read the judges comments in the costs decision in Robert Mitchell v RBOS

[flooz]

Thanks DD. I didn't want to tell them what they'd got wrong, because I felt that would just give them the opportunity to possibly create another reconstituted agreement the correct way. I can see that I'm wrong in that stance.

 

I can see I'm going to have to spend lots more time trying to extract the various bits of information I think I need, and will indeed, rewrite my letter.

 

One thing that has crossed my mind (and it may be that I've simply not read enough yet) is that if I request them to simply confirm or deny that they have a correctly executed original agreement, as the CPUTR 2008, what's to stop them simply telling me they have, when then haven't, knowing that the only way of proving that is through the Courts - in which case, it's 50/50 which one of us ends up with egg on our face?

 

But as I say, it may be that I simply haven't read enough yet.

 

[diddydicky]

remember that you need only point these things out when they intend to commence a legal action against you

 

in response to threat letters from them or debt collectors it is sufficient to tell them in broad terms that they have failed to comply/do not have a cause of action etc

[flooz]

Have amended my letter to the following

 

quote...

Thank you for your letter of 14th October 2010 and I apologise for the delay in replying. Intriguingly I do not appear to have your letter dated 30th November 2010 which you refer to!

You have confirmed that the printed terms and conditions that you provided on 30th November 2009, are indeed the original terms and conditions at the time of applying for the credit card. However, these terms and conditions do not appear to be the same as those that now appear on the reverse of the reconstituted agreement that you have provided. As you must be aware, a reconstituted agreement must still

I therefore request that you confirm, whether Capital One hold or have ever held a signed, properly executed Consumer Credit Agreement pertaining to this account and if so, to forward a copy to me instead of the Application Form that you have so far provided.

If Capital One do not have a signed, properly executed Consumer Credit Agreement pertaining to myself however, then I require written confirmation by return (CPUTR, 2008)

As my letters appear to be predominantly unread properly, with standard responses being sent that do not address my issues, it is becoming very difficult to converse with Capital One. Please, therefore, do not respond with your standard paragraph “....we will not be entering into any further correspondence regarding the provision of copy agreements.” The whole point of correspondence is an effort to draw this matter to a conclusion.

 

...end quote

 

BUT, I've also been reading through my thread to remind myself of what's happened (I've totally lost the plot ). I'll admit to not being totally sure whether my 'agreement' is correct or not, I've just taken advice from people posting. The front implies it's an application, the rear shows Credit Agreement regulated by blah blah. There have been posts pointing out where there are references on the reverse which don't 'add up', but on reading the document, I can't find them. Whilst there are differences between the T&C's (printed) that Cap1 sent as 'original' and what's now on the rear of the 'agreement', would it not be that the rear shows just 'some' of the T&C's, but the printed set are what SHOULD been provided at time of signing? Do you know what I mean (Sorry, can't always express myself in words properly).

 

I AM guilty of just following instructions on CAG, which is all very easy, but now I'm trying to put things together myself, I will confess to really really struggling. I try and find out information, but there's so much available, which in turn oftens leads to finding other bits and bobs, and going off on a tangent, that I eventually get lost.

 

Although I've put in the letter about 'confirming whether they have a correctly executed agreement, CPUTR, I'm reasonably sure Cap1 will say that they have - after all, they've been telling me that for almost a year. Is there any reason why this might change?

 

I apologise for all the questions/arguements, but I have to have things as straight as possible in my mind. But rest assured, I do REALLY appreciate you taking the time with me. Thank you.

[diddydicky]

you do not appear to have finished the first para off properly

 

i would start the second by stating that to you knowledge- you never signed a credit agreement therefore.....etc etc

[flooz]

Thanks DD. I realised I was going to put something in about reconstituted agreements still having to have all of the prescribed terms, but decided I didn't need to, then forgot to remove that bit.

 

Second paragraph now amended to read "As I do not recall having signed any agreement with yourselves, I respectfully request that you confirm......"

[flooz]

Quick question. While making the small amendments to my letter, I am also wondering whether (my second paragraph in my letter above) it is correct to call what they have sent "..... on the reverse of what you claim is a true copy of the agreement". Given that I am disputing whether they have a correct agreement or not, would it be more sensible to simply refer to the document as "........ on the reverse of the application form you have so far provided."

 

I'm sure this is just a small point, but it crossed my mind that perhaps I should continue to refer to the document as an application form.

[diddydicky]

Quick question. While making the small amendments to my letter, I am also wondering whether (my second paragraph in my letter above) it is correct to call what they have sent "..... on the reverse of what you claim is a true copy of the ALLEGED agreement". Given that I am disputing whether they have a correct agreement or not, would it be more sensible to simply refer to the document as "........ on the reverse of the application form you have so far provided."

 

I'm sure this is just a small point, but it crossed my mind that perhaps I should continue to refer to the document as an application form.

 

dick

[flooz]

Thanks DD. Amended ready to send.

 

I don't know what I'd do without you.

[flooz]

Well, surprise surprise, response received from Carp1, and they've not answered my question - as usual. I guess in not answering, they've given me an answer - they haven't got one.

 

I'm fed up with this, one more response from me, which will be along the lines of :

 

"thank you, blah blah,

 

I note you have yet again failed to answer a reasonable question, and as such I see no point in further correspondence.

 

I am about to file for bankruptcy, accordingly, any correspondence you do receive will be in connection with the same. "

 

I simply can't be bothered with them anymore. I've tried to get them to talk sensibly to me, but they're not interested. Sobeit!

[flooz]

Can anyone tell me if there are any disadvantages/advantages of telling Cap1 that I may be filing for bankruptcy? Don't want to put that in a letter if it could lead to further complications.

 

Merry Christmas to one and all.

[diddydicky]

Can anyone tell me if there are any disadvantages/advantages of telling Cap1 that I may be filing for bankruptcy? Don't want to put that in a letter if it could lead to further complications.

 

Merry Christmas to one and all.

 

i would advice against ever sending such a letter

 

if you do not own your own house- have no major assets and lots of debts then tell me and i will show you a way to phrase a letter to kill off their claim- but NEVER make an admission that you are unable to pay your debts in that way if is is not true

[flooz]

Hi DD. Seasons greetings and all that.

 

We no longer own our own house, that was sold to finance our business, which has lost us almost everything. Have some debts, but are continuing to pay them at the moment (primarily because of only wanting to deal with one thing at a time - a loan with Northern Rock, doesn't have a cancellation clause on the agreement, despite being dealt with by post). Bankruptcy, although is always a possibility, is something we want to avoid at all costs.

 

There will be a change of address in a couple of months, and we have no intention of providing Carp1 with the new address, but I was looking for 'stalling time' I guess.

[diddydicky]

Hi DD. Seasons greetings and all that.

 

We no longer own our own house, that was sold to finance our business, which has lost us almost everything. Have some debts, but are continuing to pay them at the moment (primarily because of only wanting to deal with one thing at a time - a loan with Northern Rock, doesn't have a cancellation clause on the agreement, despite being dealt with by post). Bankruptcy, although is always a possibility, is something we want to avoid at all costs.

 

There will be a change of address in a couple of months, and we have no intention of providing Carp1 with the new address, but I was looking for 'stalling time' I guess.

 

 

an admission that you cannot pay your debts is an "act of bankruptcy" and should only ever be made if this is the case

 

 

however if you have no assets ( a man of straw) then your negotiating position is strong with regard to unsecured debts

 

if you are fed up and want it all to be brought to and end and dont want to go into formal debt arrangements then the way to do is to make a list of all your incomings and outgoings

 

separate off any essential priority payments such as rates power food in surances and housekeeping,childrens clothes and school requirement work travel expenses, a reasonable amount for holidays fags etc

 

what is left is you disposable income

 

divide your outstanding unsecured debts (by value) by the amount of disposable income ( make sure this is a realisticly affordable figure and dont try to offer to pay more that you know you can confortably afford

 

then write to each creditor and say that you have XXXXXXXx disposable income to service XXXXXXX unsecured debt and according to what you owe them XXXX is what you propose to offer them in terms of repayments

 

if any of these creditors are charging interest or fees- tell them that you can only make the offer on condition that they cease all interest and fees- since not to do so would mean that you were not actually repaying the debt.#

 

tell them that you have come to a stage where you "need your life back (or something similar) and therefore this is a final offer to try and resolve the situation and that if it is not acceptable to them- then they must take whatever action they feel is necessary, and if this is a court action and a ccj- then the same offer will be made through the courts

 

Tell them that you are not a home owner, have no saved cash or major assets have no ability to raise finance due to your poor credit rating and in short are a "man of straw" therefore if they wish to throw good money after bad and take more extreme action- then you are prepared for this eventuality as at least it will give you a fresh start

 

 

 

+++++++in a nutshell- why would you want to make YOURSELF bankrupt- even if serious (cost around £450)

 

if you are going to do that let THEM do it (cost to them around £1500- which they will not recover - and once they start the bal rolling they lose ALL control- and can then never contact you directly again in the matter

 

the truth is that (amex and the taxman apart) it is VERY RARE for companies to go through bankruptcy procedings against other than traders or companies- the directors have a duty of care not to waste the company assets.

 

The above basically is a "shot across their bows"

 

what you are saying is

 

you have driven me to the edge- go on punk- make my day and push me over- if you dop you will get f++k all!

 

better done whilst you still have no assets and before you attempt to buy a new house

 

you should also note that if you already have bad credit references- a ccj is no worse and in fact (IMO) a whole lot better

 

Once obtained CCJ's tend to be moved to remote parts of a companys debt and accounting ledgers and after some time are a lot easier to negotiate F & F settlements on than "live" debts. they are removed from the remit of the debt collection activity and are then adminstered by purely accounting staff- who after some years often like to clear them out of the year ending accounts and are much more amenable to offers

IMO

[flooz]

Thanks DD. I can look into preparing something in the new year. It feels weird though, after nearly 18 months of fighting them for a correctly executed agreement, and not acknowledging any debt to them, to now admitting the debt and making an offer of payment, albeit a neglible amount. Having said that, once we leave the business (in a few months time) there will be no income whatsoever until jobs are found, and heaven knows how long that will take.

[diddydicky]

Thanks DD. I can look into preparing something in the new year. It feels weird though, after nearly 18 months of fighting them for a correctly executed agreement, and not acknowledging any debt to them, to now admitting the debt and making an offer of payment, albeit a neglible amount. Having said that, once we leave the business (in a few months time) there will be no income whatsoever until jobs are found, and heaven knows how long that will take.

 

if you word your letter along the lines of:-

 

to those creditors who have proven a legally enforceable debt- this is the amount i am prepared to offer

 

then you will have covered that fact that until they do so they can swivel- they will therefore ONLY get what you are offering if and when they prove it

 

 

 

when you are ready knock up the letter and post if for comments (you can leave the figures as XXXX if you dont want to reveal them

 

download from one of the debt counselling sites the pro forma type of income/outgoings sheet as this format is accepted by most courts

 

and as i said DO NOT fall into the trap of trying to offer more than you can comfortably afford

 

you are STILL entitled to a life- even when paying off debts!

[flooz]

Thank you DD. I shall prepare something when the festive season is well and truly over and done with, and shall post my letter on here.

 

With many wishes to you all for Christmas and 2011!

xx