Capital One and CCA-is it enforceable?

[Fennecfox]

A few months ago, Capital One served me with a default notice and passed my debt with them to Capquest. I have been paying token payments on this and several other debts since becoming unable to work 10 years ago after suffering a serious form of cancer. They had started demanding to see copies of my bank statements etc and it was when I refused to do this, having submitted the usual statement of expenses, that they issued the default notice.

 

I requested a copy of the CCA from Capquest, who passed it to Capital One. They have now sent me what they say is a "reconstituted copy" and a rather threatening letter advising me that the document is valid and the debt must be paid.

I wondered if someone would kindly look at the documents if I scanned them in with (personal details removed)? I have no idea as to whether the agreement is enforceable!

Edited October 19, 2010 by Fennecfox

[Bazooka Boo]

Yes scan them up, but please ensure you remove ALL ID, ref numbers, bar codes, addresses (except theirs) anything that will Identify you to them when they look at the document.

You gotta give em 10 out of 10 for their confidence! Fools..

[rhos123]

hi, yes scan the recon agreement post it up ( personal details and ref no and barcodes)

[Fennecfox]

Many thanks-I will put them up shortly then...

[Fennecfox]

I have scanned the stuff they have sent me...there is one more page to upload. There also pages of terms and conditions but only first page- which I have scanned- has my name on it.

Edited October 18, 2010 by Fennecfox

[Fennecfox]

I realise these are not legible-have tried to link to flikr but wont let me as I have made too few posts apparently. Will try and find another way...

[Guest Cartaphilus]

Can you please upload them somewhere like tinypic/imageshack/photobucket as they are presently too small to read. However, from the amount I can see, it says Application Form at the top and signed sometime in '08?'

[Fennecfox]

I can't post the images (or links to them) as I don't have a sufficient post count.Can some kind soul volunteer to post them if I PM them to them?

[Guest Cartaphilus]

Sorry, my apologies, I actually didn't know about the post count thing until a few weeks back; not sure how it worked or whether it was a new feature or not. Though I would still re-edit page one, as there are what look like idenfitifable numbers at the bottom ie they are handwritten in the boxes, bottom right corner of the form.

[Fennecfox]

Cartaphilus-we have put them on flikr under the name Babbedyboo but this site won't let me post link to them... The Application was in fact dated 1998.

[Guest Cartaphilus]

There appear to be handwritten identifiable numbers in the bottom right corner of page one (just to be safe), I'd edit them out if I were you. Okay, so 1998. I was comparing it to my application you see which I had in front of me to see if there was anything. From what I have read, and just going on what I have read on a few forums including this one, I always thought that Capital One agreements were usually unenforceable if they were sufficiently old enough. I could be completely and utterly wrong, so not to confuse you.

 

However, wait for someone with more expertise than me (I haven't looked at the t/c's but I do know from experience, reading again that Capital One were issuing out their current ones along with copies of credit agreements if they were older forms like yours).

[Fennecfox]

Thank you-have taken that down for now to re-edit it. It is such a long time ago, but it would appear that the card in question was a Platinum replacement for an original Capital One card. The form they have sent seems to be a copy of the application to replace the original card with a Platinum card.

[Fennecfox]

Have now again put up the edited documents on Flikr under name Babbedyboo but as i said can't link to them as prevented by site.

[Guest Cartaphilus]

Sure someone will help you out.

[Fennecfox]

Is anyone able to take a look at the documents on Flikr for me-or post a link so others can see? I really need some advice on this please! Or can anyone advise how else we can scan the documents in so they are large enough to see?

[Bazooka Boo]

Here is the link to your scans (hopefully!)

http://www.flickr.com/photos/54947773@N05/

On the application form it refers to 'your right to cancel' have you got a copy of your right to cancel in the T&C's of this agreement?

Also, have you sight of your 'original' T&C's that were in force when you took out this agreement?

[Fennecfox]

Very many thanks for doing the link!

 

Capital One have sent me two sets of "Terms and Conditions"; one which they claim to have been those in force at time of agreement and one which currently applies. Page 5 of scanned documents show the first page of the former and has my name typed in to first sentence.

There is a section detailing right to cancel within the terms and conditions.

[Sare Heid]

based on what has been posted so far by Fennecfox, my OH has received almost identical response (save for personal details), in our case the ' right to cancel' (long version) box appears right at the last on pg5 of the 'reconstructed orig' T&C's in my case.

 

hope this helps.

 

cheers

 

SH

[Halibutt]

Looking at the original "agreement" - which is exactly the same as mine, it states "Application" very clearly at the top as well as containing an advert along the right hand side. I was informed here that my Application didn't conform to a properly constituted agreement and was therefore invalid.

 

Would be interesting to see what others think now.

[Fennecfox]

Yes I was wondering whether an "application" could be deemed to be an agreement. What action have you taken, if any?

[Sare Heid]

i would advise caution here, the application form refers to "t & c's overleaf" however without being provided with the back page, you can never be sure that it did (or did not!) contain all of the prescribed terms within these alleged t&c's on the reverse of the form.

 

common sense & natural logic would suggest that if they have a copy of this they should provide it, but this a bunch of bankers we are dealing with!

 

i suspect that due to age of 'agreement', they wont have retained a copy, hence they provide the freshly printed pages of t&c's with application form.

 

you could issue a letter of dispute informing that this is not a properly executed agreement containing all the prescribed terms and offer to inspect the original at their offices, if such a document exists.

 

just my opinion mind, i'm fairly new to this, hopefully more experienced CAGer's will offer some advice soon.

 

SH

[Halibutt]

Yes I was wondering whether an "application" could be deemed to be an agreement. What action have you taken, if any?

 

My response was the following two letters:

 

Dear Sir/Madam

 

Re: Reference Number xxxxxx – Account In Dispute

 

Thank you for your letter of xxxxxx, enclosing a copy of my Capital One Application Form of 1999 and copies of original and amended “Terms & Conditions”, also for your subsequent letter of xxxxxx; the contents of both have been duly noted.

In my letter of xxxxxx (also sent by Royal Mail Recorded Delivery) I clearly requested that you supply me with a full and accurate response to my CCA request.

As you have failed to fully comply with my request, and the account entered default on xxxxxx, as of today’s date, it remains in dispute.

For your ease of reference, you were, according to the terms defined in section 61(1) of CCA 74 and subsequent Statutory Instruments, obliged to send me:

“a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments.

 

If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition, a full statement of this account should be sent, detailing all debits and credits to the account.”

I also formally request full details of any and all interest and/or administration charges that your company has applied to the above account since you purchased it from the original Creditor.

I would be obliged if you would also forward to me a full copy of your company’s complaints procedures and related documents at your earliest convenience.

Yours faithfully

 

 

Dear Sir/Madam

 

Re: Reference Number xxxxxxxx – Account In Dispute

 

Thank you for your letter of xxxxxx, enclosing a breakdown of payments to the above account, that were made directly to Capital One (the original creditor) from xxxxxx to xxxxxx inclusive, the contents of which have been duly noted.

In my letter of xxxxxx and my subsequent letters to you (also sent by Royal Mail Recorded Delivery) I clearly requested that you supply me with a full and accurate responseto my CCA request as I wish to take further advice on this matter.

This included a request for a breakdown of all payments made to the above account up to the date of my request.

As you have continued to fail to comply with this request, and the account entered default on xxxxxx, as of the date of this letter, it continues to remain in dispute.

For your ease of reference, you were, according to the terms defined in section 61(1) of CCA 74 and subsequent Statutory Instruments, obliged to send me:

“a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments.

 

If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition, a full statement of this account should be sent, detailing all debits and credits to the account.”

As a substantial proportion of the original debt that you purchased from Capital One has been paid in instalments directly to yourselves since xxxxxx, I would remind you that I have also formally requested full details of any payments made to your company since that date and all interest and/or administration charges that your company may have applied to the above account since you purchased it from the original creditor.

I look forward to your written response.

Yours faithfully

 

To date, I've not received a reply to either letter - even though I requested a full copy of their complaints procedure, along with other correct documentation...

[Guest Cartaphilus]

Mine was from a later time than the OPs but still over 10 years old. They did not supply me with a credit agreement, but an appplication form for their credit card, I have never actually seen what could be considered a credit agreement from them because I know what I filled in at the time, it was a leaflet of some kind, whether or not they provided T/Cs from the year I requested this information. It used to be from the time you took the account out, as how could you possibly know what changes were coming in x number of years later? Answer - you can't.

 

i suspect that due to age of 'agreement', they wont have retained a copy, hence they provide the freshly printed pages of t&c's with application form.

 

So, yes, that is the purpose of issuing new and current T/Cs, Barclaycard were also doing the same thing as were a number of other cards and all at the same time eg around spring 2008. To enforce older agreements, perhaps knowing they didn't contain the relevent information, with the new ones. However, my agreement is still unenforceable because they haven't supplied a document I signed, and the other thing, there are several boxes left unticked on my application form which makes you wonder how it got accepted in the first place which would also throw up a few questions in itself. Some of it was very dubious looking to say the least.

 

Edited - what I do know is you will have a lot of fun and games getting Capital One to acknowledge anything in writing outside of their gibberish they call letters sent to people in response to queries. I've dealt with enough Capital One letters to know this by now from my own personal experience. Whatever they count for.

Edited October 19, 2010 by Cartaphilus

[Fennecfox]

Thank you for your responses. I am still unsure as to where to go from here.

 

I today received a very unpleasant letter from Capquest threatening that legal action will start if I do not respond to said letter by 2nd November, so they have obviously been passed the debt again by Capital One. They also rang at 8,02 this morning and left message on my answerphone-I screen all calls.

 

So should I write back to Capital One disputing enforceability of the documents they have sent me, similar to Halibutt's first letter above??

[Bazooka Boo]

I'll have to go back over the whole thread again to refresh my memory, I'll be back on later to have a look......if I remember!!!!

Give it a gentle bump about four ish, so it flags up again..