Capital One "Agreement" - Valid? Help Please!

[Halibutt]

Right, sent the Account In Dispute letter by Royal Mail Recorded Delivery today. See what happens next...!

[Halibutt]

Proof of recorded delivery:

 

 

I also haven't had any phone calls for two days now

 

I was wondering though, account is now in dispute...

 

If Lowell magically come up with a true credit agreement, presumably then I would have to make a repayment offer for an amount I can reasonably afford, instead of the huge monthly amounts they were previously demanding?

 

Conversely, if they cannot come up with a true CCA and I pay nothing to them for six years, it then becomes statute barred.

 

Does that then mean that the alleged debt still remains, but is unenforceable? If so, how would I be able to make the whole thing go away?

 

Any advice welcomed and thanks once again.

[unclebulgaria67]

 

If Lowell magically come up with a true credit agreement, presumably then I would have to make a repayment offer for an amount I can reasonably afford, instead of the huge monthly amounts they were previously demanding? Yes that is correct. They could go to Court, if your offer was not acceptable.

 

Conversely, if they cannot come up with a true CCA and I pay nothing to them for six years, it then becomes statute barred. Yes that is correct.

 

Does that then mean that the alleged debt still remains, but is unenforceable? Yes If so, how would I be able to make the whole thing go away? They might never say whether they can get hold of the CCA. They would prefer to drag this out. You could go down the route of offering a full and final settlement for a percentage of the debt, provided the credit record, is recorded as satisfied and any remaining amount is written off. For a F&F settlement to be acceptable, you would probably be looking at needing atleast 30% of the debt available to pay as a lump sum.

[Halibutt]

Thanks Uncle. Concise and helpful as always. I think I owe you a beer or two!

[Halibutt]

Hi All,

 

I CCA'd Lowell about two and a half months ago, then sent the account in dispute letter when they'd produced nothing within the time limit.

 

Last week, they sent me a copy of my original credit agreement from 1999 (looks fine to me - I've double checked it) plus a copy of the original terms and conditions and a copy of those currently in force. Both are sequentially numbered and have no paragraphs, etc. missing. This, however, is all they've sent.

 

I was under the impression that this is all well and good, but that they should also have supplied a full statement of payments made to the account and any interest or charges added, dating from at least the time that they bought the account from Capital One, which was in 2006.

 

Does this make the CCA invalid until the statement(s) are received or am I going to have to set up a standing order now? They gave me 21 days to reply from the date of their covering letter (sent 2nd class of course) asking for my repayment proposals.

 

Should I write stating that they haven't yet fully complied with my CCA request or am I wrong on this point? :-|

 

This isn't statute barred, as I was paying installments until May this year, when I found CAG!

 

Thanks for any help.

 

H.

[harrassed senior]

Hi H - you have been missed

 

Not too sure of what the answer is though, to your question, hopefully others will be along - Welcome Back

[Halibutt]

Thanks HS. I've been away looking for work. No luck so far, but I'll keep trying. I've missed being here oddly enough! Cheers

[Halibutt]

Here's the supposed "Credit Agreement" - Clearly headed "Application Form" but it does reference the Consumer Credit Act in the box at the bottom, where the signatures are supposed to be, so I'm presuming this is valid... :/

 

[Guest Cartaphilus]

It's a bit small.

[Halibutt]

It's a bit small.

 

Click it mate. It gets much bigger!

 

I think I may also have answered my own initial question, as the "Account In Dispute" template cleary states:

 

"The document that you are obliged to send me...

...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 have been sent to me detailing all debits and credits to the account."

 

I'll be writing to Lowell again tomorrow.

[Guest Cartaphilus]

Not for me it won't click *bursts into tears*

[Halibutt]

I'm sorry... It clicks fine for me. you could just put the following address in your browser bar: http://www.imagebam.com/image/79c46494416943

[Guest Cartaphilus]

I can see it now, and that's a new name on the signature a 'M Hooper' ... I have forgotten which name Capital One usually shoves on most applications from around that year.

Edited August 23, 2010 by Cartaphilus

[Guest Cartaphilus]

I'm sorry... It clicks fine for me.

Right, well, it may 'clicks fine' for you but you can yes certainly click on the link but when it came to clicking, then enlarging it wouldn't work. I was merely saying this, as I am not backward where PC usage is concerned and the simple expedient of clicking an object which, in fact, is the first thing I did upon getting the image up. I merely mentioned it because I couldn't see it properly, for no other reason, therefore others may not have been able to. You can see it on the other link you provided.

 

Also, are you sure that agreement is enforceable because from what I was reading, most Capital One agreements from that long ago weren't (threads found on CAG). Mine's not for example. Just mentioning it.

[harrassed senior]

Help, my head is spinning, it is an Application Form, no more no less, I refuse to click

[Halibutt]

I'm sorry Caraphilus. There was no intention to drive you potty... and thanks for the input.

HS - mine was spinning when I suddenly saw that I'd been missing "Application Form" staring me in the face, plus a huge ad at the side saying, "Fill in this application form..." We live and learn!

 

Plus there's the not providing all the relevant required info. Letter sent today.

 

I'll keep you updated on their response, which is bound to be, "We believe that we have fulfilled our obligations under... blah blah..."

 

We all know which letter they'll get if that's the case!

 

End's in ".... .ff"

[Halibutt]

I'd love a bit of help please, if anyone can advise.

 

Received a letter from Lowell on Saturday, containing a thick wad of statements of payments to my account from when I was repaying Capital One directly.

 

However, the statements don't show any of the payments I've made to Lowell since 2006 or any of the charges they (might) have added to the account. While with Lowell, I've paid off a substantial amount of the balance, so I would expect them to at least give me a breakdown of my payments to them. I'm not in a position to be able to make any kind of full and final offer, as I'm in receipt of JSA. The reason I contested the debt was because they were asking me to pay back nearly £35 a month, which was completely unreasonable in my circumstances and they wouldn't budge from their position.

 

Which letter should I now send them? They've asked for payment proposals within 7 days of the following standard letter:

 

 

http://www.imagebam.com/image/35f27895467957"

[coledog]

Suggest that you compose a letter saying that the account is still in dispute as they have not supplied an executable credit agreement add date when you asked for this. Insist that they supply a full breakdown of all payments made since 'date' and details of all charges etc which make up current balance of the alleged account as you wish to take further advice on this matter. Add that you do not acknowledge the alleged sum outstanding.

 

On JSA you are only expected to pay £1 per week or less but nothing if they cannot prove the debt is owed and it could have been paid off for all you know (if they have not taken all payments into account).

[Halibutt]

Thanks alot for that Coledog. Roughly what I was intending. I think the generally accepted amount to pay while on JSA is £1 for every Benefit payment. As they're paid out fortnightly, that would be £1 every two weeks.

 

If anyone has any further info that I may have missed, please do let me know as I'll have to send a letter tomorrow!

 

Thanks

 

H.

[Halibutt]

I had a Capital One CC from 1999. It was sold to Lowell who had bullied, harassed by phone (letter sent and harassment stopped) and they demanded far more than I could pay while on benefits.

 

My dispute is that after Lowell's appalling behaviour, I started investigating via CAG whether these bullies were legally entitled to collect on the alleged debt.

 

I sent a CCA request, which took them 3 months to reply to. I disputed its validity and they then took another five months to send me a copy of:

 

Original application form (headed as such) rather than agreement:

 

 

Breakdown of payments made to the account (shows no payments from 2005 onwards) although I was paying Lowell up until July 2010. The covering letter shows a greatly differing balance to that shown at the end of their statement:

 

 

compared with:

 

 

They refer to the case of RBS V McGuffick in the above covering letter, but I thought there was more to the case than that.

 

They have finally sent a threatogram thus:

 

 

They have also completely ignored my written request (signed for by Royal Mail Recorded Delivery) for a complete copy of their complaints procedure - requested in September 2010.

 

I'm now inclined to complain directly to the regulatory bodies - mainly about harassment and the distress caused by automated phone calls, verbal threats, etc. and simply copy the complaint letter to Lowell.

 

However, I'd like some advice please as to whether or not the supposed CCA response is valid. I didn't receive any agreement from Capital One in the first place. The Application form was the only thing.

 

I certainly won't be phoning them as they suggest - I don't want more bullying and threats by phone! They've had the "In writing only" letter from me anyway. I think that as they took five months to reply to my last letter, then me taking a couple of weeks to respond to them isn't unreasonable! Their latest letter of course, states "...may result in further action." as usual...

 

Any advice would be gratefully received.

 

Thanks in advance.

 

H. x

Edited March 15, 2011 by Halibutt

[BRIGADIER2JCS]

In my opinion it proves that you applied for the card not that

they actually issued one.

The court case dealt with I believe with an agreement that was mislaid not

a non existent one.

you could try SAR to Cap1

I would write to say debt remains in dispute until the break down of the fiogures

is provide send RD of course.

[Halibutt]

Thanks Brigadier. I'll give that a good mull over and maybe SAR Cap One when my benefit money comes through. Can't afford to until then!

[teaboy2]

I see no terms and conditions that most be contained within the same 4 corners, and i see no note saying terms and conditions overleaf. So to me it is not enforcable on that alone, but more vital is the complete lack of the perscribe terms.

 

So no it is not a valid CCA and it is completely unenforceable. So send them this:-

 

http://www.consumeractiongroup.co.uk/forum/content.php?436-Failure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale.

 

And this;

 

http://www.consumeractiongroup.co.uk/forum/content.php?415-POSSIBLE-Letter-when-a-questionable-agreement-application-is-sent.

 

Edit them to suit.

 

P.s. Add this in response to their RBS v McGuffick statement - under Regulation 7 of the Copies Regulations because Waksman in Carey v HSBC [2009] EWHC 3417 (QB) para. 108 stated ‘I conclude that Reg. 7 requires a copy of the executed agreement in its original form….’

 

Note the McGuffick judgement was on the 6th October 2009 but the 1 i mention above was another high court judgement that was passed down on the 23rd December 2009 and as such the Carey V RBS is a legal precedent and the Mcguffick case in regards to a CCA is irrelevant as of the Carey V RBS case

Edited March 15, 2011 by teaboy2
added p.s.

[maroondevo52]

Any charges you could re-claim ?

[Halibutt]

Thanks for all the help and advice so far guys - much appreciated. No charges that I can see at the moment, Maroondevo - apart from normal interest whilst the card was supposedly in operation.

 

I forgot to add that they did send a set of typed sheets (not original documents) that they claim outlines both the original and amended terms and conditions. But then, they could have been typed by my Mum in her kitchen...

 

Also no copy or acknowledgement of either assignment or default notice.

 

I think I need to put together a response, detailing all the errors/non-compliance so far and also reiterate that I require a copy of their complaints procedure by return.