Capital One

[medievil2003]

hey guys,

 

i have done exactly the same as you and asked for a copy of my cca from capital one. the response and documents attached in the letter i got as below:

 

1. "Ultra Short Application Form 8261" and directly under that there is a very small CREDIT AGREEMENT which i cannot see any real terms on it but capital one have attached 4 pages of their terms and conditions.

 

This is what they said in their reply letter:

 

"I enclose a reconstituted copy of your original agreement. Although not required under S78, i have included part of the reconstituted agreement a scanned copy of the signed signature page of your original agreement. The reconstituted agreement sets out the terms of your agreement and your name and address when you entered into your agreement with capital one on 4th march 2004. I also enclose a copy of your current agreement; and a statement of account required under S78 which is set out at the end.

 

By providing the information set out above we have compiled with our obligation under S78 to provide you with a copy of your executed agreement. It was confirmed by the judgement of His Honour Judge Waksman QC in Carey v HSBC [2009] 3417 (QB) that providing a reconstituted copy of your agreement is compliant with S78 and there is not requirement under the CCA to provide you with a photocopy of the signed agreement.

 

For the avoidance of doubt, the signature page provided is a scanned copy of the signature page of your original agreement only. Included on the reverse was an extract of the terms of your original agreement (including the prescribed terms) or the full terms of your agreement. Prior to signature you were provided with a full copy of the terms of your original agreement to keep and you were sent a further copy of your original agreement with your first credit card"

 

Is this a load of crap!?

 

The ultra short application form 8261 is the application form with a small bit at the bottom that says CREDIT AGREEMENT and this is what has been signed. Thats the only signature.

 

I appreciate any help

 

 

Thank you

[cerberusalert]

"I enclose a reconstituted copy of your original agreement.

That's all you need to know, if they ever hope to try to take enforcement through the court they would have to produce the original. If they had that why reconstitute it?

[medievil2003]

Hi, thanks for your prompt reply! I see you have helped so many people - you deserve some recognition for your advice.

 

What do you think i should do next, resend a letter again asking for the true copy of my agreement? I was expecting that they would not just accept they dont have it. These are games i suspect to scare me off and not to bother any more. I gave them the 12 days + 2 days and the 30 days was counting, can i still use this if they have not responded as i asked? or would i have to start again?

 

Thanks.

[cerberusalert]

Personally I would ignore them for now & see what they do next. There's no point in getting into a game of postal ping-pong with them, besides it's more than likely that they will now sell this a/c on.

[medievil2003]

Ok, i mean i am under no dispute with them - my payments have always been made on time. But i read through this forum and because i am in large debt with all my credit cards and with them hiking interest rates up minimum payment to clear account would go onto my sons, sons son!

 

If i am no dispute with them ignoring it would mean they wont need to write back?

[cerberusalert]

If i am no dispute with them ignoring it would mean they wont need to write back?

If you are still making payment there is no need for them to contact you.

 

As it stands now though by what you've described the CCA is unenforceable. It's up to you obviously if you are willing to carry on with payments do so, but if you're up for a fight you could always challenge the validity of what they've sent you.

[medievil2003]

thanks again.

 

Ok, I will fight this because i have nothing to lose. The only thing i need to make sure is the procedure is done in the correct order and i am sticking to the legal sides making sure capital one do not catch me out somewhere with something. If i have asked for a true copy of the CCA and they have failed to provide this, shall i go ahead and ask again noting that they have not send as i requested.

 

Did you want to see a scanned copy?

[cerberusalert]

I've moved your posts and created a new thread for you so as not to confuse issues in someone else's.

[cerberusalert]

Can you post up what they've sent you after removing any identifiers?

[medievil2003]

cerberusalert said:

Can you post up what they've sent you after removing any identifiers?

 

I have attached the copy of what they had sent me saying this is the credit agreement. The other pages are just a copy of their terms and conditions which just looks like they have printed them off and quickly added them new.

 

Please let me know if you cannot see is well as i will put it on a image hosting site.

 

Thanks cerberusalert for your advise and warning.

 

Here it is:

 

Edited August 20, 2010 by medievil2003
Edit: just realised you wont be able to see it large. i shall be adding it on an image hosting site

[cerberusalert]

It's as it says on the form, an application which contains non of the prescribed terms as required by CCA 1974 nor any right to cancel.

[medievil2003]

What about the bottom part, "CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974"

 

Shall i now send another letter asking for the true copy of the agreement as this is not valid?

[cerberusalert]

Was there another document purporting to be the reverse of the one above?

[medievil2003]

I think they have tried to include it, i have a covering letter on one saying:

"Please see overleaf for the current terms of your agreement with us, for the rest of your terms and conditions, please see the leaflet enclosed"

 

but i cant see how any of these are the reverse of the application because they are all in different font, size & different paper. It has not been scanned just printed from the computer. If it helps, i can see they have given me a copy of the current terms and conditions because the interest rate is at 31% where this wouldnt be the case from when i opened it. No document here states what interest rate i had when first opening the account and nothing is mentioned in relation to the account with the previous terms and conditions.

[cerberusalert]

Send them this recorded delivery;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[medievil2003]

Heyy, morning. I have sent that letter off last week and am just waiting for a reply now. I have done the same to Citi card aswell and got this response:

 

"Further to your recent request for a copy of your credit card agreement for **** **** **** **** we enclose a true copy of your agreement with CitiFinancial Europe Plc.

 

The true copy provided includes:

 

1. A copy of the original terms and conditions of your agreement, including the original interest rates, applicable at the time of your application.
   

This copy agreement does not include thje signature box, signature or date of signature as in accordance with Regulation 3(2)(b)(ii) of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983; we are not required to provide them.

 

2. Your current terms and conditions. Please note: your original agreement Associates GLD & DIA your current or final agreement is **** Citi Cards ** ** **** Any dates at the top of the agreement relate to the date that the terms within the agreement were vaired from, and may therefore be an earlier date than the date on which the account was opened.

 

This completed out obligations under the consumer credit act 1974 including regulations and satisfy your section 78 request.

 

For the avoidance of doubt a section 78 request does not entitle you to withhold your regular monthly payments; as such you should ensure you continue to make your monthly payments. "

 

What do you think of this? All they have sent me are pages and pages of their terms and conditions. Nothing with my signature on or date.

 

Do I sent the letter above to CitiCard now?

 

 

Thanks as always

[medievil2003]

Hi debtfreefast, liking the name!

 

what happened with you and capital one? did you manage to wipe your debt off?

[medievil2003]

oooo i feel for ya! at least its gone now though right? both of them. lol

[paulwlton]

My OH's last payment to Cap 1 was 2006. Now assigned to Lowells.

[medievil2003]

Hey guys,

 

i have received a letter back from capital one after the reply you told me to send...

 

"we have previously provided you with a copy of your current terms and conditions and a reconstituted copy of your original agreement; together with a scanned copy of the signature page of your original agreement. You were also provided with a statement of your account. Therefore, we have fully compiled with the requirements of S78 of the consumer credit act

 

As we have compiled with our obligation under S78, we will not be entering into any further correspondence regarding the provision of copy agreements. Your agreement is enforceable and we will continue to treatit as such.

 

We do not consider that we are making unjustified demands fo payments as we do not deem this account to be in dispute.

 

Your account balance remains fully due and owing and we will continue to request payment. It is important minimum payments to your account in accorance with the terms of your agreement. We will strongly defend any claim you bring in relation to your agreement."

 

What do i say back to this!? lol

 

thanks

[medievil2003]

just to add when they said:

 

"we have previously provided you with a copy of your current terms and conditions and a reconstituted copy of your original agreement; together with a scanned copy of the signature page of your original agreement."

 

the copy of the current agreement and the original agreement has just been printed, the only signature i have is the one thats on the first page: "Ultra short application form 8261" with a small section under it with my signature and the authorised signature.

[medievil2003]

also, what the hell is this about: http://www.moneysavingexpert.com/news/loans/2009/12/high-court-ends-debt-avoidance-loophole is it true?

[gporter3319]

Just read your link regarding CCA! omg,does this mean the DCA's can now chase us indefinately us big time?

[medievil2003]

hey guys, just an update!

 

I wrote again to capital one with the template provided by a response, they came back to me with the same sort of response:

 

"We have previously provided you with a copy of your current terms and conditions and a reconstituated copy of your agreement; together with a scanned copy of the signature page of your original agreement. You were also provided with a ststament of your account. Therefore, we have fully complied with the requirements of the s78 of the Consumer Credit Act.

 

We do not retain the original agreement of the signed agreement which is returned to us, but scan the signature portion of the agreement and retain this within ouraccount system. On the reverse of the signature portion of the agreement were the prescribed terms of your agreement.

 

Please read the following in regards to the enforceability of your agreement; we would like to refer you to the recent decisions of Mr Justice Flaux in McGuffick v The Royal Bank of Scotland plc [2009] EWCH (Comm) ('McGuffick') and HH Judge Waksman in Carey v- HSBC [2009] EWHC 3417 (QB) ('Carey')

 

It was clearly established in Carey that the following is correct in the context of s61 of the Consumer Credit Act 1974 ('CCA')."

 

I have talked to the Financial Ombusdmen Service and for some reason they cannot help me with this because its not in their field to tell me whether or not what they are saying is true and cannot decide whether this is enforceable or not....Shall i go straight to the FSA? If Capital one are no providing my original agreement then they obviously do not have it.

 

thanks in advance for your replies.