Cap1/Carter claimform - old cap1 credit card debt

[plshelp!]

This case has now moved on slightly ! I have been arguing the CCJ application since April and the court has been giving Cap1 and Brian Carter constant extensions to the deadlines to provide information, the last prompted a harsh letter from Cap1 stating they are positive the application, initially posted is fine to enforce this agreement but they have constantly messed the court about.They have also sent statements and further copies of the default etc.

 

I now have to attend court on the 1st September. I am hoping to defend with my take on the documents previously shown but could really do with some help. There are lots of holes in the paperwork they have sent. I am not sure if I should make the documents public here as it would be easy to identify the case but does that really matter ?

[citizenB]

Unless we are able to see the paperwork then we cant fully advise you. Take copies, blank out any personal information then scan them in and post them up.

[plshelp!]

Hi, thanks again CitizenB for responding, getting a little worried as I am due in court on the 1st.

 

I tried to get the date changed as BC and Cap1 have been messing around constantly not abiding by the directions of the court.

 

The judge said he wanted it heard on the first, even though I have not been given enough time to file my defence.

 

The agreement is the hashed together application I posted originally.

 

I have attached the statement from BC, they have also stated it is not cost effective to attend the court !

 

Any help would be much appreciated.

 

I am working through all the lies and info in the letters sent and the so called agreement.

 

Is the absence of prescribed terms no longer a valid defence ? as the information seems conflicting at best.

 

Thanks.

BCWS0001.pdf

[citizenB]

I think you are going to have to produce something along the lines of a cross between a skeleton argument and a Witness statement.

 

It seems as though Northampton have a lot to answer for as well.

 

The Application form. There are no prescribed terms. If that is all they produced for your s78 request then it doesnt fulfil the Carey v HSBC test. Have a look at the information that vint1954 provided for another CAGEr, I have copied that over for you below.

Quote

judgment-carey-v-hsbc.pdf

Be sure to note points: 95 - 105, 112, 116 and the conclusions

 

some more information below, this time from the OFT

Quote

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

 

Summary

 

On request and when accompanied by £1, a consumer has the right to:

 

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and

- the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original

might

have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature

but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading

Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

 

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

 

 

Legal Argument

 

 

 

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to (

typo

, she means

Creditor

I think

)

‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (

Not sure this is correct, "if any" was inserted to cover Verbal Agreements

).

 

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

 

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

 

 

Meaning of ‘true copy’

 

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it

(In re Hewer ex parte Kahen

(1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in

Burchell v Thompson

[1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in

Burchell

at 105).

 

 

Hewer, ex parte Kahen

- the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

 

Sharp v McHenry

(1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

 

Burchell v Thompson

[1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the

interest

rate of 55%. The reader of the copy would have to guess whether the

interest

was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

 

Commercial Credit Company of Canada Ltd v Fuiton

[1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

 

 

terms and conditions

 

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions

as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

 

 

debt collectors

as creditors

 

 

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

 

For a debt to be assigned in law, there are three conditions:

 

• the assignment must be absolute.

 

• the assignor must make the assignment in writing.

 

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt.

 

In some instances, the

debt collector

may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in

Tito v Waddell (No 2)

[1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

 

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

 

The first issue on when the

debt collector

becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement

or

the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

 

Misleading statements to debtors

 

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the

debtor

. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

 

May 2008

 

 

Susan Edwards

Head of Credit Investigations and Enforcement, Office of Fair Trading

 

 

Did they ever send you any separate terms and condiitons, variations etc ?

 

Do the account number on their POC (if mentioned) and the account numbers on the statements match up ?

 

Someone suggested that this might be an application for a 2nd card. If so, then it cant in all reality be the agreement to which you entered into originally.

 

If this is intended to be a modifying agreement, then it should state that. It should also provide you with the original agreement so you can see what was modified.

 

BC in their WS at point 12 is putting you to proof that you sent a valid CCA request and paid the statutory fee. Do you have a copy of the letter, proof of posting and the receipt of the postal order/copy of the postal order in order to prove that a CCA request was sent. You may also be able to telephone the post office to confirm if the PO was cashed and when. Telephone 01246 542091. It is a direct line.

 

You should basically be putting together a statement in much the same way as BC have done.

 

I think you need to go through their WS point by point. If you can trash it then do so. You could also summarise how you arrived at this point.

 

ie. You wanted a copy of your agreement in order to see what you had signed up to, interest rates etc.

 

They failed to provide you with the information you required by way of a legal request under CCA 1974 (with the proof of posting etc)

 

It might be a good idea to pop in mention of the muddle created by Northampton and BC's lack of response to your CPR requests.. hopefully you might be able to get an adjournment in order to put in a decent defence. But do your best to prove that you DO HAVE a defence.

 

If you want to pop up a draft, I will be around for most of the day.

[plshelp!]

Hi Citizen B, thanks for all that info, I have only just been able to sit and read through.

 

I have loads of points to make and I can trash their Statement.

 

They did send a photocopy of current terms but this is not marked at all and is just a generic set of terms etc and they have typed the charges on the bottom.

 

I will type up my list of errors and sort of defence, the info above is a massive help.

 

 

If there is time I will post but seeing it will take me a while to produce I will probably run with it and post after court tomorrow with the outcome.

[plshelp!]

Hi, where to start !

 

I put together a defence but did not get to give it to the judge.

BC did not attend but the judge made a good argument on their behalf.

 

I was given two weeks to serve a defence on BC.

 

In that defence I need to work through the credit agreement attached, which is just a photocopy of general terms not specific to my account at all but because it was presented as the agreement and I do not have a copy of the original it stands.

 

"we both know what banks are like, they lost the original, it would be unfair to ask if you have a copy ".

 

I also need to work through the statements and explain why I feel the balances should not be paid but they seem fair and are in black and white.

 

I only have a week left to carry out these requirements, I was waiting for the result in writing but probably wont get it before the deadline !

 

I thought I had sound arguments but the points like its an application for a second card got brushed aside with "well we have statements that show expenditure did you not make these transactions" ?.

 

I attach the so called agreement. The original so called CCA was attached as the signature page.

 

T+c's.pdf

[citizenB]

I will need to read back over your thread again.. will do that later. The "document" in post 43, has it been edited ? Because I can see no signatures or anything to identify that it is a specific agreement. This paperwork is obviously pre 2006 because the default charges are £15.00. They were amended to £12.00 after the OFT ruling.

 

Ok, I found the Application form in post 1

 

plshelp! said:

I think part of it is an application for a second card. I had an original mastercard and then encouraged to take out a visa in 2002. I have binned the statements from that far back. I managed to find one but for the original card and a letter saying they have now stopped the PPI, something else to write about !

The application has two card numbers I blanked out, neither are relevant to me. It looks as if they may have made this document up!

 

 

 

 

plshelp! said:

Received letter from BC saying account has been refered back to Capital One and is now on hold.

The court informed me if I return the form N149 and they dont it will be struck out. Would this be my best course of action ?

 

When exactly do you need a defence by ? Have you received the Order from the court advising what has to happen and by when ?

 

My observations.

 

The document provided to you in post #1 is an unsolicited Application form. It does not appear to contain any prescribed terms. You say that there are account / reference numbers on the form, but they do not represent the account as shown by the statements (which show a totally different reference number )

 

What you are having to supply to the court now is a mix of a Witness statement/amended defence.

 

The Default notice appears to be ok, although it doesnt state a date by which you need to remedy the breach. It does allow 28 days so is likely to be considered ok by the court. The termination was correctly issued by the looks of things.

 

The amount demanded on the Default notice. Is it correct ? If you have statements then check the amount asked for on the statement for that time. Around 18.08.2009 Would there have been any default charges in the sum on the DN ?

 

There is no link between the set of terms and conditions they have produced and the application form. Presumably you never received those terms and conditions at the time the unsolicited application form was received. Almost certainly they could not have been on the back of the Application form.

 

Have you totalled any default charges up .. These could be reclaimed so would make the amount being requested on the claim form inaccurate. If there are lots.. that could help out considerably.

[plshelp!]

I need to respond by Wednesday the 15th, the order states firstly ' each and every way in which he contends the agreement exhibit.... to the witness statement of BC dated.....is incorrect and any item in the agreement of the claiment and defendent not included in that document, any item in the said document which was not in the agreement of the Claiment and Defendant'.

 

I have trawled through my documents looking for anything that may help. Firstly the account in question is the original card although I do not have evidence of this, unless I bring my other account into these proceedings. The application is therefore not for this card. The so called terms and conditions show the charges to be £15, I have found a document or leaflet not dated no names or personal information, (All I have done to the terms already shown is block my name and address, there were no signatures or account numbers)this shows the rate of charges at £20 can I introduce this to show the ageement they are showing was not the original and cannot even be said to be a true copy as the information is incorrect ? This would then mean they have not complied with the courts directions and I then could state according to an order made in July if the information is not disclosed the claim shall be struck out.

 

The second order, each and every I disagree with the statements reasons and alternative amounts.There are default charges but at £12, after 2006, can I claim these back ?If so they do add up. The statments would also be questioned if the application is for the second card they should predate it, being statements for the original account prior to the application form by more than 10 days.

 

Thirdly any other evidence.

 

This statement will stand as my defence. I have to work this afternoon but will be ammending my orginal early evening and will post a copy on here. I have to send it tomorrow for it to be served by Wednesday.

[citizenB]

Hi plsehelp, yes you can claim the charges back. I think even the £20.00 charges or at the very least the difference between £20 and £12.00.

 

So the order is advising you to go through the agreement and either point out which prescribed terms are missing or those you disagree with ?

 

Also you are ordered to question the amounts on the statements from my reading of that order. I will try and get some help to decode it more accurately for you.

[plshelp!]

Hi, I have confused matters, the charges are all at £12 but every month there is a over limit, missed payment and returned payment adding up to £36. Yes I have to work through and show the terms are missing. The judge seemed reluctant to get into that arguement but with the evidence I have now, it cannot be conclusive, as you have oreviously noted it does not stand the test from Carey

 

Thanks again for all the help its keeping me sane just about !

[slick132]

Just to confirm, you can reclaim the full amount of any penalty charge added to the a/c, regardless of the amount. You should also claim interest in restitution using the contractual rate for the a/c (use the cash advance rate). This spready will do the job quickly - http://redirectingat.com/?id=3236X604245&xs=1&url=http%3A%2F%2Fwww.shweb.pwp.blueyonder.co.uk%2Finterestcalcs.xls&sref=http%3A%2F%2Fwww.consumerforums.com%2Fresources%2Ftemplates-library%2F51-guidance-notes%2F233-interest-tutorial

 

If the penalty amounts shown in their T&C's differ from the rates that you know applied at any given time, use this to show how the agreement differs from what you say it should show.

[plshelp!]

Hi all,

 

This is a word of warning to all who are in a difficult position and have decided to go down the road of a CCA request and challenge your agreement.

 

I have today been at court and all I can say is be very very careful as to how far you are prepared to go !

 

I have read numerous threads on the forum and have found many people with the same issues, with Capital One especially and the same documents.

 

If you have followed this thread at all you will see the courts have played a large part in this case and yet again they have not failed to amaze, shock and basically leave me feeling sick, physically sick ! I am not sure if my head is in the right place to do this but here we go !

 

Situation : I had sent a defence, as the judge requested detailing all the points I disputed and I asked for clarification between the two accounts held. Therefore I needed copies of all relevant documents.

 

I sent the defence within the prescribed timescales. Capital One sent nothing, I contacted the court they had not received any correspondence within the time frame and their post was upto date. I did receive notification from Cap1, that they had removed BC from the case .I am then informed that Eversheds are taking over,

 

I contacted the court they had still received nothing. I write an e-mail asking for clarification from the court and basically stating that Cap1 had yet again failed to respond within the timescales and therefore (try my luck), the case should be struck out, on the grounds that they have not answered the initial s78 request with the correct documents, June 2009 and therefore also not complied with the directions of the court. No response.

 

I telephone, it took a week to get to the judge and I will have to wait for a response.

 

Last Wednesday a royal mail parcel left in my bin (where I should have left it), a mass of paperwork over a ream of paper(500 ish sheets) a defence from Eversheds.

 

I phone the court, they have received it as well, will it be allowed I ask ? 'well its in the file so have to see what judge says'.

 

I try to find the time to read and digest the information but silly me did not think it would be allowed and if it is, I would be granted an adjournment in order to fully digest and respond to the paperwork.

 

COURT:

The judge starts by saying this is a final hearing and therefore a conclusion will be made today.

 

Obviously my stomach churns at this point.

I wait to get my initial point across. I can see the issue but what is your defence ?

 

Hang on I have not had the time to go through the paperwork I cannot defend it today, but you have had it for seven days !.

 

I try to bring in the point that Cap1 have not complied and have had over a year to respond. ( To try to keep this short as poss, this went on for about 30 mins but guess what), it will be heard today and a final decision will be made !

 

Why did Cap1 not respond ?.

The actual answer ' for whatever reason your honour' !

I am now in melt down !

They start and I scramble to keep up and try to find holes as they go through their witness statement.

 

I had read and spent about six hours trying to unscramble the mess but did not take notes to the court. What would you like to say in defence ?

I do not have a defence as I have not had long enough to prepare.

Try your previous defence !

 

I use my defence from the previous hearing but it does not make sense as they have introduced the documents but I try to concentrate on the prescribed terms.

 

There is a point made that the agreement is generic I then realise they have used the same agreements for both accounts even though they were started a year apart, so how can the terms be specific to me and generic at the same time  the judge agrees and at last starts giving the solicitor a hard time.

 

I find that the charges levied to the account do not agree with the so called agreements, the judge agrees but they counter that they will waiver all charges.

 

I bring in Cary v HSBC and state if the document is reconstituted it should be a honest and true reflection, this is not as the charges differ. The judge agrees.

 

There are other factors, I'm on a roll, the documents sent show agreements confused between the accounts. There is a current copy for one account and the original is for another.

 

I use this to highlight Cap1 confusion between the accounts. We debate how can a document be generic and specific at the same time and the solicitor for Cap1 gets very lost.

 

I think we break for an hour and i suggest you get in contact with Cap1 to clarify the situation ! I am quietly confident at this point and cant wait to get back in. Silly me !

 

We get back the judge looks a little shady, thanks the solicitor for the copy of CaryvHSBC and asks if they have anything to add.

 

He starts to try and explain the reasons for differing figures by saying they can change overnight up or down ! not clear again. I say nothing further to add but feel that it has not been proven 'beyond doudt' (dont use that line not for this court! probability is the term used !), that the agreement is a true and honest reconstitution.

 

I find the defendant has used a scattergun approach ! (hang on i asked for more time, I did not have a defence to the new statement). I cant remember all what was said as I had to switch of or loose my temper.

 

The judge found that my defence was not sufficient, he even changed their paperwork and said he knows it is wrong but its so insignificant, that they send the wrong credit agreement, there is no point in dwelling on facts !

 

The point that the prescribed terms differ was also to small a detail, they get all they ask for, solicitor costs, court fees etc. Good luck anyone that goes to court against Judges and banks !

 

Appeal ! no thanks !

 

 

[slick132]

Hi Plshelp and I'm really sorry to see how this went for you.

 

A good example of how the courts let the banks' legal reps miss deadlines with impunity leaving you insufficient time to properly consider their late submissions.