Cap One card - help

[Rocky Roadster]

Hi all, keep up the good work.

 

I have just received a reconstituted agreement from Cap One with a letter referring to a court case and claiming the agreement is enforceable.

 

The agreement is 6 double sided text documents and 1 page typed with "original agreement Mr.... number 123456---- .." and a second page typed with "Current Agreement Mr......number 123456----"

 

Not a true copy of the original agreement but they are saying that they don't have to supply the original document.

 

Letter is attached.

 

Is this enforceable?

 

Many thanks,

RR

Cap One CCA 08-10.pdf

[harrassed senior]

What they are saying, as far as it goes, is that they have met their obligations under your CCA request which they are allowed to do by sending a 'Reconstituted Agreement'. So far so good.

 

But, the further information that you now require and which they obviously do not have, is the actual signed Agreement. This is the document which will make their claim in a County Court enforceable. Without that the alleged Agreement is NOT enforceable in Court.

 

You could play around with the following template letter and respond with that:

 

Dear Sirs,

Thankyou for your template letter.

Clearly you have chosen to abide by the Consumer Credit Act as minimally as is lawful, by providing a reconstituted agreement. While this may satisfy a CCA request, it is not enforceable in a court of law.

 

I now request you to confirn as to whether you actually hold a copy of the original signed agreement. If you do not hold an agreement, then I require you to confirm this, or if you do hold the original signed Agreement then I would ask for you to advise me in what form.

Certainly I can think of no valid reason why you should choose to provide a reconsituted version rather than simply photocopy the original-if it exists.

I would remind you that the OFT state that creditors should not imply or state that an enforceable agreement exists if that is not the case.

 

I look forward to receiving your response within 14 days.

[Bazooka Boo]

That case doesn't change the fact that if a prescribed term is missing then their is a breach of the agreement, they are clearly swinging the lead, and if they had the original why not copy it and send it instead of being so obfuscate..(found that in the dictionary!)

 

The other way to get all the details they intend to use in a court of law, is to wait until they threaten legal/court action and then hit them with a CPR request, if they are going to threaten legal action then put them to strict proof and make them sweat for their efforts.

[harrassed senior]

:?

That case doesn't change the fact that if a prescribed term is missing then their is a breach of the agreement, they are clearly swinging the lead, and if they had the original why not copy it and send it instead of being so obfuscate..(found that in the dictionary!)

 

:-|

[Rocky Roadster]

Hi folks, sorry for the delay and thanks for your replies.

 

I am so broke that I feel that I might as well dispute the account and wait and see. They don't seem to have the original and are trying to get me to drop the dispute.

 

If I wait until they send a court claim and ask for a copy of the actual document, then I guess a CCJ is inevitable if they can supply it.

 

If I challenge the claim and lose what action can the court take please ?

 

Many thanks,

RR

[Deb T]

If you lose the court action you'll have a ccj registered against you for 6 years, the court will order you to repay the debt + any interest/costs awarded at the time. However, the court will (should) also take into account your current circumstances and ability to repay the debt and will more than likely

arrange for a payment each month that suits your pocket better than it will suit the company that took you to court and if you think it's unreasonable still you can apply to have it looked at again.

 

If you own your own home and do not maintain the court payments to the letter the company you're paying back can apply to the courts for a charging order against your home which means when you sell they have a shout above yours (but not before the mortgage company)

for any equity in the property. Under extreme cases and it is rare and once a charging order is in place the creditor can apply to the courts for the house to be sold and thus get their money a little quicker. The last circumstances really is a worst case scenario and is rarely

applied anyway. But you did ask the question so I've given as concise an answer as I can.

[harrassed senior]

Don't be downhearted yet, believe me, I am almost sure that if they had the original they would have taken great delight in sending you a copy and give you 7 days to pay up. As Deb T has said the above is the worst case scenario, and they will struggle to get this into Court for the first round. Have a good weekend and forget all about this shower.

[debt4get]

i fear you will be waiting a long time for cabot to issue court papers on a reconstituted agreement...send the account is dispute letter and forget them...if they had the original believe you me they would have sent a copy of it...this is typical cabot smoke and mirrors tactic.....i begged them to put an agreement before a court...3 years later and still waiting...good job i never held my breath

[Rocky Roadster]

Hi all,

Updating my thread for Crapone.

 

25/06/2010 Letter from C1 requesting 3 months banks statements and copy of Income tax return

13/07/2010 CCA request posted 14th July.

24/07/2010 Letter received; will answer within 4 weeks. Will be in touch if it is going to be longer.

03/08/2010 Dispute letter sent.

05/08/2010 Received a reconstituted agreement and a letter stating it is enforceable and we will continue to treat it as such.

20/08/2010 Posted on DAG. Advice is to forget it, they would have sent original if they had it. If it goes to court (unlikely) do a cpr request for actual documents to be used in court.

08/09/2010 Letter pay £1 or we may sell to another DCA.

08/09/2010 Posted dispute letter 2. Have you got an enforceable agreement or not? Gave them 14 days.

16/09/2010 Letter received dated 15/09/10 - We are looking into this and may take up to 4 weeks. If longer, we will tell you why. Thank you for being patient while we collect the information you need.

09/10/2010 Letter from Fedrickson International. Pay up to prevent further action.

11/10/2010 Responded with dispute letter posted 1st 11/10/10

 

After crapone letter threatening to sell/pass to a DCA and now Fred int writing to me does this mean that crapone haven't got the original agreement and know the account is unenforceable?

 

The amount Fred Int are claiming is £6000. Does this effect how I should handle it? i.e. county court ceiling is £5000 I think. Should debts over this be handled any differently?

I am guessing that if it is over £5k then court costs would be higher and therefore the risk to the OC greater if they haven't got an enforceable agreement?

 

Grateful for any opinions on this.

Regards,

RR

[Bazooka Boo]

Good to see you gave BC the dispute letter, horrible little man. Ensure you complain about him to this new outfit!

http://www.legalombudsman.org.uk/

[Rocky Roadster]

Hi folks,

 

After I sent the dispute letter to Fred Int, they have now given me 7 days to pay the lot or they will take immediate action.

 

They are threatening to add £500 interest, plus £190 court fees, plus £100 solicitors costs, adding around £800 onto the debt and taking it over £6000.

 

1) Can they do this?

 

2) Are they likely to go to court?

 

3) After my dispute letter, Cap One wrote saying CCA is enforceable quoting Wakesman in Carey vs HSBC and stating that "this is our final response" - does my dispute still stand or not?

 

Some help would definitely be much appreciated.

Thanks again,

[lord_tiger_putin]

Hi folks,

 

After I sent the dispute letter to Fred Int, they have now given me 7 days to pay the lot or they will take immediate action.

 

They are threatening to add £500 interest, plus £190 court fees, plus £100 solicitors costs, adding around £800 onto the debt and taking it over £6000.

 

1) Can they do this?

 

2) Are they likely to go to court?

 

3) After my dispute letter, Cap One wrote saying CCA is enforceable quoting Wakesman in Carey vs HSBC and stating that "this is our final response" - does my dispute still stand or not?

 

Some help would definitely be much appreciated.

Thanks again,

 

Did you post Crap Ones attempted reonstruction? I did not see it.

 

I did see such an attempt before which were obviously wrong. They stiched the first page with the signature to the pages with the prescribed terms. The problem with that attempt was that the original agreement were signed when there theft charges were still £20 but the prescribed terms page showed £12 theft charges, obviously not the right one been stiched. The prescribed terms in the agreements where these charges are £20 is unenforceable (therefore this tactic from these flies).

 

When did you take out the agreement? I will be able to let you know what the prescribed terms should be.

 

 

Anyway Carter DO NOT go to court. If he cannot get a judgment by default, he cannot run away quickly enough!! The moment he gets chalenged, he runs!!

 

I am waiting for the last letter of discontuinence from the court then I will post my clollection of Carter/Fred letters containg:

No longer representing the client.

Account returned to client

Case discontinued

 

Got around 4 or 5 of them!

[Rocky Roadster]

Thanks for that, I will check my docs and post them later with more details. Got to go to the doctor now so will post this evening.

Cheers,

[Rocky Roadster]

Hi,

Here are the cap one letter following my dispute letter, and the reconstituted CCA that they sent through.

 

Took a lot of scanning; pages of it; all new prints with not even the original application form or any signatures. A typed heading "Original agreement", and a second one "Your current agreement".

 

They quote two court cases in their letter in response to my dispute, which are interesting.

 

Hope that you get time to read it!

 

The agreement was from June 98.

 

Cheers,

Capone CCA.pdf

Capone response to disputed CCA.pdf

Capone CCA letter.pdf

[lord_tiger_putin]

Hi,

Here are the cap one letter following my dispute letter, and the reconstituted CCA that they sent through.

 

Took a lot of scanning; pages of it; all new prints with not even the original application form or any signatures. A typed heading "Original agreement", and a second one "Your current agreement".

 

They quote two court cases in their letter in response to my dispute, which are interesting.

 

Hope that you get time to read it!

 

The agreement was from June 98.

 

Cheers,

 

I saw the same court case twice, the Carey case (Judge Waksman), so I think they qouted only the one case.

 

This was a case end of last state year basically telling they can do what they are doing providing they include the prescribed terms when you took out the agreement. It also states that they must provide you with the the current terms, therefore all the junk. Providing they have send a statement of account with it, then they have complied. BUT the case also made it clear, should it go to trial, they will have to cough up the original signed agreement!

 

Made you wonder, why all the trouble reconstructing all this if they could simply provided a copy of the real thing?

 

Whether it is un-enforceable only depends on the prescribed Terms in the original agreement (pages 2-4), they must be correct. The current ones is unimportant (pages 7-8

 

I am a bit unsure given it is that old but the Prescribed Terms is completely out of line with the requirements. Unless there were a change in the early 2000's, then they have a useless piece of paper.

 

I will see whether I can get something about that later unless someone else can shed some light on that.

[Rocky Roadster]

Hi LTP, thanks for your reply.

 

The Cap One letter in reply to my dispute letter mentions the Carey case, but also MrJustice Flaux's decision in the case of McGuffick vs Royal Bank of Scotland, [2009] EWHC 2386 (Comm)(' McGuffick').

 

I haven't heard of this one before and it is the first time they have mentioned it and they refer to it as "recent".

 

You commented:

 

Whether it is un-enforceable only depends on the prescribed Terms in the original agreement (pages 2-4), they must be correct.

Do you think that they are correct?

For instance it quotes "interest rates on your account from 1999" and "interest rates up to 1999", obviously not part of the original prescribed terms.

[rebel11]

Hi Rocky

 

Heres Carey v HSBC, theres a summary at the very bottom:-

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

[Rocky Roadster]

Hi Rebel11,

 

Have you heard of the McGuffick case?

[rebel11]

Hi Rocky

 

Heres a summary:-

 

http://www.hammonds.com/FileServer.aspx?oID=22700

[Rocky Roadster]

Thanks; heavy going.

[rebel11]

Hi Rocky

 

CC like to cherry pick the bits they use, have a look at the Carey Judgement, the summary at the bottom, point (4) does it apply to your case?

[lord_tiger_putin]

Hi Rebel11,

 

Have you heard of the McGuffick case?

 

McGuffik is just another off the recent "erosion" judgments, contunuing to erode the beauty of the original CCA 1974. It is all about what enforcements means, they concluded that the creditor can continue to tharsh your credit files, the DCA can continue their harrassment and threats of court action, etc. when they do not have complied with your CCA request. It is suppose to cover the "temporary un-enforceable cases" where they could not get the CCA in 12 days but will have it in say 3 months.

 

Unless empty threats and credit files entries bother you, it is meaningless because they cannot take you to court until they comply, i.e. cough up the CCA (confirmed in this case).

Edited October 25, 2010 by lord_tiger_putin

[lord_tiger_putin]

Hi LTP, thanks for your reply.

You commented:

Do you think that they are correct?

 

I do not believe they are.

[lord_tiger_putin]

Thanks; heavy going.

 

Non compliance with section 77-79 of the CCA 1974 went from:

After 30 they committed an ofence

to

They can demand payment on the account.

They can add further interest or any charges to the account.

They can pass the account to a third party.

They can register any information in respect of the account with any credit reference agency.

They can issue a default notice related to the account.

They can continue to harass you

They can continue to issue threats

 

The point of actually taking you to court hasn't been eroded YET.

 

Off course, YOU CAN continue to ignore them!

[Rocky Roadster]

Hi rebel and tiger,

 

I read point 4 in the Carey summary as being clear cut and they definitely haven't provided a copy of the original agreement, just a history of what the agreement might have contained.

 

I am not bothered by their letters and the calls have stopped (or I am not answering them).

 

I never want credit again so defaults are irrelevant.

 

I have a question about CCJs and what happens to them if I go bankrupt that I have put on a new thread.

 

Sit tight and ignore Cap one I think.

 

Thanks for your support.

 

Best wishes,