Is This A Valid CCA? They Say Yes - I Say No

[Mozz1]

On the CAG donation issue, I made my first donation today by Paypal, but my own view is that this should not be compulsory as posts do go unanswered. Remember that a lot of folk are on CAG because of debt / financial problems.

 

However, what are royalties, platinum, classic account holders etc? Does that depend on subscriptions or is it do with the number of posts etc??

[slick132]

Hi Mozz and thank you for your donation.

 

The status, ie basic, classic, platinum, etc reflects the number of posts made by an individual. It has nothing to do with donations at all.

 

If anyone wants to discuss the donations issue further, please start a new thread to do this to avoid any further hijack of this one.

 

[letsdothis]

I have had a response off CQ telling me that the agreement is enforceable as they have now supplied the T and C's

 

The problem is, one set of the T and C's cannot be the original ones as they quite clearly show late payment / default charges of £12 - So these T and C's have to be from after 2006 - These have the reference v14# at the bottom of the 6 pages, therefore there is no way that they were on the back of the agreement.

 

The other set of T and C's that they have sent me, has late payment / default charges of £15 and yet on all the statements that they have sent me as well, all the intial charges are for £20 - There are 5 pages of these T and C's and so cannot have been on the back of the original agreement. These have the reference V6# at the bottom of them.

 

Where do I go from here now?

[slick132]

Hi LDT,

 

By supplying their T&C's, CQ may have gone some way to complying with CCA 1974. This means they may have the right to continue to seek payment from you for this debt.

 

However, that has nothing to do with whether the debt is enforceable or not. Only a court can decide this if the creditor takes you to court.

 

[Mozz1]

Yes but do the T&C permit the OC to assign the debt to a DCA?

[letsdothis]

Hi LDT,

 

By supplying their T&C's, CQ may have gone some way to complying with CCA 1974. This means they may have the right to continue to seek payment from you for this debt.

 

However, that has nothing to do with whether the debt is enforceable or not. Only a court can decide this if the creditor takes you to court.

 

 

 

Hi Slick

 

The T and C's they have sent are practically the same as previously posted on CAG

 

http://img.photobucket.com/albums/v2...ginalAgr-2.jpg

 

http://img.photobucket.com/albums/v2...ginalAgr-6.jpg

 

http://img.photobucket.com/albums/v2...ginalAgr-3.jpg

 

http://img.photobucket.com/albums/v2...ginalAgr-4.jpg

 

http://img.photobucket.com/albums/v2...ginalagr-5.jpg

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-3022377.html

 

 

Obviously they are reconstituted, which CQ now seem to think they have a case. And in no way would they be on the back of a single piece of paper aka as an agreement. As already mentioned, the figures that they would charge me for a late payment / default etc are not the same as my statements show that I have been charged.

 

They also state this in their letter.

 

The court in the case of McGuffick-v-RBS PLC (2009) EWHC 2386 (Comm) determined that if an agreement is unenforceable, the debt nevertheless remains due and it is proper for the creditor to continue to report the existence of the debt to the Credit Reference Agencies. Consequently, we will continue to report on this account to the Credit Reference Agencies.

Which way now - anyone? Edited July 12, 2010 by letsdothis

[diddydicky]

i wouldnt "go anywhere"

 

let them sue you on this as an original agreement and see where it gets them!

[slick132]

Hi LDT,

 

If you are sure the Prescribed Terms could not have been on the reverse of the card application, then the doc't supplied as your "credit agreement" is not enforceable. However, that only comes into play if the creditor actually takes you to court for the a/c balance.

 

My focus would be on reclaiming the penalty charges with interest in restitution at the bank's contractual rate. This will maximise the amount you can claim and could put a decent dent in the a/c balance.

 

Another useful point is that a DN or other adverse marker on your CRA files is invalid if it includes any penalty charges. In effect, the balance they state as owing is wrong and such adverse data should be removed from the CRA files.

 

Edited August 10, 2010 by slick132
typo

[letsdothis]

i wouldnt "go anywhere"

 

let them sue you on this as an original agreement and see where it gets them!

 

Hi Diddy

 

That's what I was sort of thinking, do I communicate that or just leave them to it now?

[letsdothis]

Hi LDT,

 

If you are sure the Prescribed Terms could not have been on the reverse of the card application, then the doc't supplied as your "credit agreement" is not enforceable. However, that only comes into play if the creditor actually takes you to court for the a/c balance.

 

My focus would be on reclaiming the penalty charges with interest in restitution at the bank's contractual rate. This will maximise the amount you can claim and could put a decent dent in the a/c balance.

 

Another useful point is that a DN or other adverse marker on your CRA files is invalid if it includes any penalty charges. In effect, the balance the state as owing is wrong and such adverse data should be removed from the CRA files.

 

 

The images I linked to are practically the same, about 5 pages of T and C's - There is no way they would be on the back of the agreement. (Or at least that is not a copy of the back anyway)

 

As for the reclaiming already in hand. Approx £4.7k including restitution etc

 

DN can wait for now, will sort that out once the charges have been refunded.

[diddydicky]

Hi Diddy

 

That's what I was sort of thinking, do I communicate that or just leave them to it now?

 

personally id just sit back and see what happens

[letsdothis]

personally id just sit back and see what happens

 

Cheers Diddy.

 

I have had a reply from Cap One re my letter asking for the £4.7k back this morning.

 

Thank you for writing to us about your account.

 

It's going to take us a little while to look into your situation and come back with a detailed response. We'll do everything we can to get an answer to you within four weeks of this letter.

 

If for some reason our investigations take longer than four weeks, we'll contact you to tell you why this is.

 

Thank you very much for being patient while we collect the information we need.

 

Lots of Love

Sven Lagerberg

[Laura Cooke]

Sent me same letter about 3 months ago they never came back to me reported them and they still have not offered a response

[letsdothis]

Sent me same letter about 3 months ago they never came back to me reported them and they still have not offered a response

 

Did you not issue a court summons?

 

I fully intend to 14 days after I send the LBA in about 7 days or so, I gave them 14 days to respond to my first request.

 

No point in going to the FOS I don't think at the moment for me, I may as well go to court, nothing to lose.

[Laura Cooke]

My letter to them was a complaint which they said they would respond to within 4 weeks which is a joke never heard a thing

[diddydicky]

i wouldn't advise initiating action against them

[letsdothis]

i wouldn't advise initiating action against them

 

Not for the CCA Diddy, the charges etc

 

CQ can initiate against me if they want re the CCA and then I could counterclaim for the charges?

[Mozz1]

wouldn't it be easier to claim via the FOS if the OC is failing to cough up?

[diddydicky]

Not for the CCA Diddy, the charges etc

 

CQ can initiate against me if they want re the CCA and then I could counterclaim for the charges?

 

if you claim then the burden of proof is on you and it could be expensive

 

much better (IMO) to have the information ready and then deduct it from their claim in any pre action correspondence and./or counterclaim

[letsdothis]

if you claim then the burden of proof is on you and it could be expensive

 

much better (IMO) to have the information ready and then deduct it from their claim in any pre action correspondence and./or counterclaim

 

Hi Diddy

 

I have sent Cap One a letter asking for all the charges back. They have responded with the letter above.

 

I gave them 14 days to refund all the charges, plus CI and also 8% interest as well. I was going to wait for the 14 days to pass and then send them a LBA giving them another 14 days to comply.

 

At that point I was then going to issue a court summons for the amount of the charges, plus the CI and the 8% - Is this what you are advising against?

 

I have done the same with BC and Aqua and also managed to negotiate a final payment of £1k in F&F against a car loan by using this method. BC paid CI and 8% and Aqua repaid all the charges with 8% - Both against the balance owed leaving hardly anything left to pay to clear both accounts. All of this was done with just letter writing and no court summons.

 

Cap One, I believe are a tough nut to crack, hence why I was prepared to go all the way.

[letsdothis]

wouldn't it be easier to claim via the FOS if the OC is failing to cough up?

 

The FOS would not get you the CI I believe, just the charges and the 8% stat interest, hence why I was not thinking of going down that route.

 

If I just get the charges and 8% stat interest I would only get about £1.5k back, leaving a balance still to pay.

 

With the CI the amount owed is approx £4.7k enough to pay off that debt and 2 others as well.

[diddydicky]

well i stress it is only MY opinion- if you have had previous experience and success well you must go with your own instincts

 

when i can wait until a creditor starts and action and i can then wrest control of it away from him - i cant personally see the point

 

i would have thought that at the time of starting an action against you- the creditor is much more likely than he is now, - to refund any charges- so as to increase his chances of success/decrease the chances of his action being struck out

 

good luck whichever way you decide to go

[letsdothis]

well i stress it is only MY opinion- if you have had previous experience and success well you must go with your own instincts

 

when i can wait until a creditor starts and action and i can then wrest control of it away from him - i cant personally see the point

 

i would have thought that at the time of starting an action against you- the creditor is much more likely than he is now, - to refund any charges- so as to increase his chances of success/decrease the chances of his action being struck out

 

good luck whichever way you decide to go

 

I think I understand what you are saying, basically, if CQ try anything now, all I need to do is to let them know that there is potentially, £4.7k of charges plus interest, to be counterclaimed. Therefore they would be on a hiding to nothing?

 

Whereas if I initiate the action myself there is a greater risk against myself?

 

I think I need to wait for one of 3 things to happen:

 

1) Cap One give in without a fight and refund all the £4.7k

2) CQ to initiate action and then tell them about the £4.7k thus negating their chance of success

3) Cap One offer a lower amount to settle, and then I tell them that I only accept it in partial settlement, and save the balance in case of 2)

 

Would that be a better plan?

[letsdothis]

I have had a letter from Cap One today, offering me just over £1000 to settle my complaint.

 

It's a start I suppose.

[letsdothis]

Any ideas on how to proceed now?

 

Some of the unfair charges are over 6 years old, and I did ask for Contractual Interest in my letter.

 

What would be the best way of continuing and telling Cap One that their offer is not good enough?

 

Would I be best replying, saying that I would accept their offer in part settlement only and then giving them another 14 days to reconsider?