what should I do now - if anything

[flooz]

Thanks UTEB, at the moment, I'm keeping any offer of a F&F as a last resort, unfortunately my finances have taken a turn for the worse, and the offer of help from a family member is no longer available either.

 

TBH, I'm not sure what to do, I've got Fredricksons chasing me at the moment (again). They tried before, but backed off after I pointed out the account was in dispute as Cap1 hadn't responded to my SAR. Cap1 have now responded, although the agreement is unenforceable due to missing prescribed terms, but they've obviously given Fredricksons the go-ahead to start bothering me again.

 

[uptoeyeballs]

I'm keeping any offer of a F&F as a last resort

 

That's my thinking too. Personally, I wouldn't make any offer unless you think they could win. If they write again, I would respond with something like the dispute letter ending it with "I would ask [again] that no further contact be made concerning the above account unless you can provide [whatever it is in dispute]. Should you write to me again without providing any new information your letter will be read and filed, but not responded to."

 

uteb

[flooz]

Thanks UTEB, I plan to send this to Fredricksons,

 

Quote...

 

 

Account number: .....................– Capital One Bank (Europe) plc

 

 

I refer to your letter dated 28th May 2010 and respectfully request you refer to my previous letters under your reference CAP/........................

 

 

As previously advised, this account is in dispute. Capital One have failed to provide a correctly executed agreement. As you are aware, any agreement that is not properly documented is totally unenforceable. Further, any continuing attempts to pursue or harass me over this account will be reported to the Office of Fair Trading, Trading Standards and the Financial Ombudsman.

 

 

I would appreciate your due diligence in this matter.

 

 

Finally, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and will be viewed as harassment. Should you write to me again without providing any new information, your letter will be read and filed, but not responded to.

 

 

Yours faithfully

 

 

... end quote

 

 

and this to Carp1

 

 

Quote...

 

 

Dear Sir

 

Re:- Account No:..............

 

Thank you for eventually sending the information requested.

 

I now understand Capital One’s reluctance to send a true copy of what is supposed to be a correctly executed credit agreement, indeed procrastinating for over 6 months. As you must realise, without ALL of the prescribed terms within the signature document, the supposed agreement is totally unenforceable, this also means that Capital One HAVE NOT provided a fully executed enforceable credit agreement, as requested under s77/78.

 

As you must realise, this agreement is unenforceable at law. Similarly, by failing to ensure that the signed agreement contained all the prescribed terms it must be taken that Capital One have made a voluntary disposition, or gift, of the loan moneys, please see Wilson –v- First County Trust for further clarification.

 

Yours faithfully

 

....end quote

 

What do you think?

[Gallahad]

Flooz I would suggest that you remove the "due" in due dilegance. The due is more usual when someone has an obligation to you. IE when you are paying a solicitor.

G

[flooz]

If anyone is around that can give further advice - i've today received a LBA from Fredricksons..... Unsure what I need to do?

 

Please?

[diddydicky]

can you post it up- sometimes these alleged lba's are not all they seem

[diddydicky]

or- you could call their bluff and send this (amend to suit)

 

 

RECORDED DELIVERY

 

Request for copies of documents

(Civil Procedure Rules 1998: Pre-Action Protocols)

 

Dear Sirs

Account/Reference*[1234 5678 8765 4321]*(IN DISPUTE)

Your letter dated***DATE***(received* **DATE**) says your client has instructed you to commence court proceedings against me without delay, and that papers are being prepared for action at my local court to seek a judgement against me.

 

As you know, I have long since requested from your client, under both the Consumer Credit Act 1974 (“CCA 74”) and the Data Protection Act 1998, evidence of the EXECUTED agreement to which both you and your client allege I am a party ,AND WHICH CONTAINS ALL OF THE PRESCRIBED TERMS . To date your client has failed to supply any such evidence, but instead tried to persuade me that providing a copy of an application form CONTAINING ONLY PART OF THE REQUIRED TERMS WITHIN THE SIGNATURE DOCUMENT discharges your client from further obligations under section 78 of CCA 74. AN AGREEMENT WHICH DOES NOT CONTAIN ALL OF THE REQUIRED PRESCRIBED TERMS IS THEREFORE NOT AN executed agreement as required by CCA 74 s.78 and prescribed by Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD 83”).

 

I remind you that CCA 74 s.78(6) provides that whilst a creditor is in default of a request made under sub-section (1) it may not enforce the alleged agreement.

 

Notwithstanding the above and your client's persistent, unexplained and wilful refusal to supply a copy of an executed agreement in accordance with its obligations (the permitted omissions under CNCD 83 Reg.3(2) excepted), you have made plain your client’s intention to begin legal proceedings against me. Consequently this matter is now subject to the*Civil Procedure *Rules and your letter appears to be intended as a “letter before claim”, despite not complying with the Pre-Action Conduct protocol.

 

Therefore take notice that, I request you supply to me within 14 days true copies of the following documents:

1) the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed, and

2) any further or subsequent notices, terms and conditions relied on.

 

If you are unable to supply these documents please confirm discontinuance of your client’s claim.

 

Take note that this request is not made under either CCA 74 or Data Protection Act 98. It is under Annex A paragraph 4.2(7) of the CPR Pre-Action Conduct protocol, for a copy of alleged documents which I believe are relevant but do not have.

 

Should you ignore this request, I shall in due course make another under CPR 27 or 31.15, as appropriate. If you fail to comply with that request, I will ask the court to strike out your client's claim as an abuse of process due to lack of reasonable grounds, or at least order proceedings be stayed pending provision of the requisite documents. The application will refer to this and previous document requests, and apply for costs.

 

FOR THE AVOIDANCE OF DOUBT, THE ABOVE SHALL NOT BE CONSTRUED AS ADMITTING THE EXISTENCE OR VALIDITY OF AN AGREEMENT WITH OR DEBT TO YOU OR ANYONE YOU CLAIM TO REPRESENT.

Yours faithfully

 

PRINT NAME, don't sign

Edited June 11, 2010 by diddydicky

[flooz]

Good evening DD - I sure am pleased to see you.

 

Attached is the LBA received. I read through the letter you suggested, but I did EVENTUALLY receive an 'agreement' from Carp1, albeit missing some prescribed terms, hence my confusion as to what to say to the Freds.

 

[diddydicky]

can u post up the agreement

 

what PT's are included and what is missing?

[diddydicky]

I have altered the letter (shown in capitals but do not print in capitals) which should be a good response to thier LBA

 

remember if you are not already doing to to keep everything (inlc envelopes)

[diddydicky]

if they fail to respond- them let them start the action and serve papers on you

[flooz]

Morning DD, this is the agreement - missing any credit limit, this card actually has a stupid limit on it - something around £13,000! Although, if I remember correctly it started off in the region of £9,000 and they kept increasing it. :-s

 

 

and this is what they now have produced on the back of it, although I have no idea whether it actually is on the back; they procrastinated for so long, originally just sending the front page etc, it makes me wonder what 'originals' they do (or don't) actually have!

[flooz]

Oh, haven't been keeping the envelopes, although I do have everything else. :-s

[diddydicky]

Morning DD, this is the agreement - missing any credit limit, this card actually has a stupid limit on it - something around £13,000! Although, if I remember correctly it started off in the region of £9,000 and they kept increasing it. :-s

 

 

and this is what they now have produced on the back of it, although I have no idea whether it actually is on the back; they procrastinated for so long, originally just sending the front page etc, it makes me wonder what 'originals' they do (or don't) actually have!

 

the credit limit is at 2/

 

the expresssion that they will set the credit limit from time to time and notify you of it is in fact a legally acceptable form of stating the credit limit

[diddydicky]

you need to find out if the "back was ever part of the front! - or if it has been superimposed

 

you should see print date on the bottom of each page- are they the same

 

(usually 03/04 or 09/07 or something similar together with some other numbers

[flooz]

Thanks DD. Have had a thorough look, and there's nothing to suggest the back and front do or don't belong together :-s.

 

What I have just checked : originally, they sent the front sheet as above, with separate T&C's which appeared to have just been printed off. Now I haven't read all of them, but certainly checking paragraph 2 which now appears on the back of the agreement, is totally different to paragraph 2 in the printed T&C's supplied under the original s.78 request.

 

Is that relevant?

 

Or am I going to have to throw myself upon the mercy of Carp1 and offer them £10 a month?

 

I appreciate your continued help.

[Dotty50]

Flooz did you do a SAR on this?

 

The 3 different lots of T & C's they sent me, none of them tied in with the initial low rate of interest (which was evident in the SAR) so I know that they couldn't have been the ones that applied at the time so that's something else you could look for.

[Craigbadger]

Well theres still no section 23 on the reverse which is what confuses me yet it clearly refers to 23 overleaf.

[Dotty50]

Or 8 & 10!

[Craigbadger]

And it refers to section 11 in paragraph 2.

How can they say this was ever on the other side?, its just all over the place.

[diddydicky]

Thanks DD. Have had a thorough look, and there's nothing to suggest the back and front do or don't belong together :-s.

 

What I have just checked : originally, they sent the front sheet as above, with separate T&C's which appeared to have just been printed off. Now I haven't read all of them, but certainly checking paragraph 2 which now appears on the back of the agreement, is totally different to paragraph 2 in the printed T&C's supplied under the original s.78 request.

 

Is that relevant?

 

Or am I going to have to throw myself upon the mercy of Carp1 and offer them £10 a month?

 

I appreciate your continued help.

 

what is the print date of the first set of T & C's sent to you and when were they sent

 

were they purported to be the original or the current TC's at the time they were sent to you

 

if they claim to be the original T & cs and they now produce on the back of the application form- different T & c's then you have them by the short and curlies!

 

there WILL be a date code- usually after the last words of the text on the right hand side column of text

 

i

[diddydicky]

just to clarify

 

whatever is printed on the back of the application form containing your signature in 2003 HAS to be the original terms and conditions

 

therefore any other document that contains terms and conditons which they allege in any accompanying letter to be the ORIGINAL or a reconstruction of the original (not current or varied) MUST be identical

Edited June 12, 2010 by diddydicky

[flooz]

Thanks for your input everyone - i intend to devote some time to this tomorrow, and will post accordingly then. Unfortunately, I'm having a tough time this evening, and can do nothing sensible.

[flooz]

Argh, just nearly finished typing my reply and lost it through pressing the wrong button. Oh well, here goes .... again.

 

Right - hopefully I shall remember everything I first put.

 

Originally, back in October Cap1 (eventually) sent me the front page of the supposed agreement (although it's more an application), together with printed T&C's on blank paper, which are supposed to be the original T&C's. There's no number at the bottom of these, just V8#. The also sent a one sheet 'Terms of your Capital One Credit Card', which I believe is the 'current' terms, that has a small number at the bottom, ending in 0809.

 

The blank paper T&C's (original?) have the following numbered paragraphs:

 

1. Definitions ......

2. Issuing the card and credit card cheques

3. Credit Limit

4. Protecting your card

5. Personal identification number and password

6. Using the card and credit card cheques

7. Promise to pay

8. Monthly statement

9. Prepayment option

10. Financial and related particulars.

11. Other charges

12. Payment protection insurance

13. Payments

14. Extra cardholders

15. Default

16. Lost or stolen cards

17. Billing address

18. Variations

19. Foreign transactions

20. Closing your account

21. Ending your Agreement

22. General

23. Use of information

24. Government Law

 

At the bottom is the usual boxes of info about CCA 1974, lose and misuse of cards, balance transfer conditions, right to cancel, and a list of the default charges.

 

On the back of the supposed full signed agreement, the paragraphs are as follows :

 

1. Monthly statement

2. Financial and related particulars

3. use of information

 

Obviously, I've not typed out all the info relating to the paragraphs.

 

Now even as a novice with limited brain capacity, I can see there is a conflict there - or am I misunderstanding something.

 

I really don't recall back in 2003 at the start of this account what came with the original paperwork - if I remember correctly, it was applied for on-line, with them sending paperwork for signature.

 

How am I doing so far?

Edited June 13, 2010 by flooz
Typo's

[flooz]

Forgot to say, I have also got a leaflet 'important information about your cap1 credit card - this is a copy of your agreement for you to keep'. This has the date of 09/09 - but I'm sorry to say, I don't know what letter it came with, as it fell out of the file when I was looking through it

Edited June 13, 2010 by flooz