Capital One "Agreement" - Valid? Help Please!

[teaboy2]

Point is that their is no reference to such terms on the CCA they sent you that i could see - i.e See overleaf for terms and conditions. As such there is no way on earth anyone can know if the terms and conditions were actually part of the original agreement of seperate. And if separate, then the original agreement is unenforceable anyway. Also the perscribe terms (which are not part of standard terms and conditions) must be on the CCA and form part of the document.

 

So key here is the lack of perscribed terms. Can you post up the terms and conditions sent to you though, so we can look just to be certain?

 

P.s. Failure of a default notice or termination notice is unlawful recission if they have already sold the account on. I.e. Once it is sold they can not remedy the failure of the DN, as the agreement no longer exist between you and the original creditor once it has been sold.

 

"Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)."

 

So you have them on two points and the best one is the lack of a Default notice.

Edited March 15, 2011 by teaboy2

[Halibutt]

Thanks alot for that Teaboy. The terms and conditions were not supplied with the application form they sent.

 

The reconstituted terms & conditions sent run to nine pages, so I'll have to try posting them later. It's the usual gumf but bears no reference whatsoever to the original application form that has been supplied as a CCA.

[teaboy2]

Lol nine pages, some how i doubt they were all part of the original agreement then. Still best to post them up so can makes sure the key perscribed terms are not there. Not that it matters since they not send a DN to you.

[Halibutt]

Here are the supposed "agreements" - neither signed or dated and to the best of my knowledge, never received by me from Capital One:

 

"Original":

 

 

 

 

 

This is the "new" agreement:

 

 

 

 

 

 

I'm hoping that any advice can also help others who have had or who are currently having problems with Capital One and/or Lowell

 

As always, thanks for any advice.

 

H. x

[teaboy2]

Sorry for delayed reponse, my internet has been down. Seems my ISP has been having quite a few problems lately, so not happy lol.

 

Anyway heres my response:

 

Looking at those their is 2 things that come to mind.

1 clearly no prescribed terms (i.e. credit limit, APR, Repayments etc) So agreement invalid and likley improperly executed if such prescribed terms where not on the original argeement i.e the overleaf to the side where the signiture box is).

2. I see nothing connecting those terms to the application from you signed. And not only that, without the above perscribed terms, those terms and conditions they sent you are irrelevant.

As for the the signed Application form in post 1, well thats all it is. Because without the perscribed terms it can not be an agreement under the CCA 1974 and is quite simply nothing but an application form which itself if clearly headed as an application form.

So what i said above makes the agreement unenforcable and probably improperly executed if no prescribed terms formed part of the said application form (which appears to be the case). But also the lack of a Default Notice would be unlawful recission of the contract. So send this to them about the application form - http://www.consumeractiongroup.co.uk/forum/content.php?415-POSSIBLE-Letter-when-a-questionable-agreement-application-is-sent and Edit to suit

but do not mention anything about the DN as of yet as that could be your silent weapon in the event they are able to supply an proper valid agreement.

[Halibutt]

Thanks alot Teaboy, most helpful

[teaboy2]

Your welcome - keep us up to date on this, as i suspect they will try it on and on and on like most do. But until they provide a properly excuted agreement, you can stick the figure up at them, as your in a win win situation here with the their failure to supply a DN as your hidden weapon that would get any court case they bring struck out even if they did have a proper agreement.

 

Though they are unlikely to bring such a case against you since they failed to supply a valid CCA.

[Halibutt]

I'll keep you informed and thanks again. Oddly enough, a mere seven hours after your initial response, they emailed me (first time ever) and insisted I phone them (no - in writing only and they know it) also offering me reduced rates of repayment. I had thought it odd that there were 8 "Guests" viewing this thread at the time...

 

Well I will respond to them, but again, it will be in writing only. By Recorded Delivery as always!

[teaboy2]

I'll keep you informed and thanks again. Oddly enough, a mere seven hours after your initial response, they emailed me (first time ever) and insisted I phone them (no - in writing only and they know it) also offering me reduced rates of repayment. I had thought it odd that there were 8 "Guests" viewing this thread at the time...

 

Well I will respond to them, but again, it will be in writing only. By Recorded Delivery as always!

 

They know all to well who i am you see, and that they are in the wrong. Still as the agreement is unenforceable and the original creditor failed to provide you a default notice, means the OC unlawfully terminated when they sold the account, and as it has been sold the agreement no longer exists and as such the failure of a DN can no longer be remedied.

 

So its up to you whether you make any repayments or not. but bear in mind, after 6 years after the last payment was made the account becomes statuted barred anyway, so making any repayments will reset the clock so to speak. Though they still will not beable to enforce the debt in court and any attempt to do so means you can counter claim against them and the OC for damages etc.

[Halibutt]

After receiving a letter today, threatening court action in five days, I've taken the advice above and composed the following:

 

DATE

Mr. A. Bartle

Lowell Financial

PO Box 511

Bradley Stoke

Bristol

BS34 9BH

 

 

By Royal Mail Recorded Delivery

Dear Mr. Bartle,

 

Re: Reference Number 123456789

 

Account Now In Serious Dispute

 

I confirm that I am in receipt of your correspondence, dated xx/xx/xx, xx/xx/xx and xx/xx/xx, the contents of each have been duly noted.

 

Your company’s response to my request under the Consumer Credit Act section 78, dated xx/xx/xx, asserting it to be a true copy of the original agreement, does not conform to sections 60(1) and 61(1) of the Consumer Credit Act, 1974 and would therefore only be enforceable by a court under s65.

 

However, the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3).

 

I note that, in your correspondence of xx/xx/xx, you refer to the case of RBS v McGuffick.

 

May I therefore take the opportunity to remind you of the current OFT guidelines, which state:

 

Section 2.2 (d) etc. “It is unfair to communicate, in whatever form, with consumers in an unclear, inaccurate or misleading manner… including unnecessary and unhelpful use of legal and technical language, for example, use of Latin phrases…etc.”

 

However, as you wish to refer to legal precedent, may I correct your previous statement by reminding you of the following, with direct relevance to the aforementioned case:

 

The RBS v McGuffick judgement was on the 6th October 2009, but there was a subsequent High Court Judgement that was passed down on the 23rd December 2009 - Carey v HSBC - and as such, Carey v HSBC became the legal precedent and the McGuffick case, in regards to a CCA, was superseded as of the date of the judgement in the case of Carey v HSBC.

 

From the judgement of Carey v HSBC:

 

“Under Regulation 7 of the Copies Regulations, Waksman, in Carey v HSBC [2009] EWHC 3417 (QB) para. 108, stated: ‘I conclude that Regulation 7 requires a copy of the executed agreement in its original form….’ ”

 

I note also from your response to my CCA request (dated xx/xx/xx) and the copy of the application form you enclosed, to which you refer as an “agreement” that:

 

 

• There are clearly no prescribed terms (i.e. credit limit, APR, repayments etc.) or any reference to such being on an associated document, rendering the alleged “agreement” invalid and most likely, improperly executed, as prescribed terms were not on the original alleged “agreement,” i.e. the overleaf to the first page of the signature form or any reference to terms and conditions within the supposed “agreement.”
  

 

 

• There is nothing to connect the supposed terms to the “application form” and without the correct and legally connected prescribed terms, those reconstituted terms and conditions that you sent cannot – both “original” and “current” - be simply assumed to be either relevant to, or directly connected with, the alleged “agreement” in any way.
  

 

 

• The breakdown of credits/debits that you sent does not truthfully reflect payments made up until xxxxxxxx 2010, and the final figure stated differs from the “amount owed,” that you state on your covering letter, showing a clear disparity of £1xxx.xx. This is, therefore, clearly not a true and transparent statement of account as previously requested in writing.
  

 

 

• The supposed copy of an original “agreement” that you sent, without the inclusion of the prescribed terms, cannot be considered a valid agreement under the Consumer Credit Act, 1974 and, as such, is simply an application form and is very clearly headed as such.
  

 

The above points make the “agreement” that you supplied, under my CCA request, unenforceable and also improperly executed as no prescribed terms formed a true part of the supposed “agreement.”

 

Also, as a result of your company’s previous actions, I refer you to my Recorded Delivery letter of xx/xx/xx, in which I was forced to request that your company ceased its undue telephone harassment of me and my family forthwith, due to the frequency of telephone calls (up to four per day) by automatic dialler - dates and times of which were noted and a record kept.

 

With direct reference to this, I must also draw your attention to the recent case of MBNA v Harrison and the subsequent judgement by High Court Judge Nicholas Chambers QC, as the aforementioned calls by your company were the cause of considerable and relentless personal distress, both to me and my disabled mother.

 

 

 

 

I am sure that you will also be aware that, should you consider court action in this case, you may produce a “reconstituted” agreement, but you must also provide the original signed and dated agreement in full. Please be aware that any court action instigated by your company or any proposed representative(s) will be diligently and vigorously defended.

 

I will hereafter be sending a Subject Access Request directly to the original creditor, Capital One, regarding the above account. Capital One will have 40 days from the date of such a request to fully comply.

 

Until such compliance, you should cease any further action and/or collection activity on the above account, including, but not limited to, transferring the account to a solicitor or transferring/selling on the account to any third party.

 

I undertake to duly inform you of the result of the Subject Access Request, in writing, by Post Office Recorded Delivery, once received.

 

Finally, your company have continuously ignored both my verbal and written requests for a copy of your formal complaints procedures.

 

Please provide these as previously requested by return post as I wish to take this matter further with both your company’s complaints department and all relevant regulatory bodies, including, but not limited to, the FSO and Trading Standards, with particular reference to the attitude and behaviour of your staff, your company’s apparent policy of excessive harassment, your company continuing to pursue a genuinely, legally disputed account and your company's refusal/inability to comply with genuine and reasonable written legal requests for information pertinent to the above account.

 

Until a response has been received from Capital One, and I have notified you accordingly, I expect no further contact from you, unless it is to explicitly acknowledge in writing any and/or all of the following:

 

· Your compliance with the content of this letter

 

· Your compliance with my request for a copy of your formal complaints procedures

 

· Your implicit assurance that you will no longer attempt to pursue the above account.

 

Failure to adhere to this request will result in appropriate charges being levied on your company for my first (and each subsequent) response to any and all correspondence, with specific regard to undue distress caused and for time and resources taken to formulate such response(s), the rates of which will be detailed alongside any response to such correspondence in an accompanying invoice without further written notice.

Yours sincerely,

 

Halibutt

 

 

Any comments or suggestions before I send the above please?

 

 

Thanks as always

 

H. x

Edited March 18, 2011 by Halibutt
Updated letter

[BRIGADIER2JCS]

:madgrin:Brilliant!!!!

[Halibutt]

Thanks Brigadier.

 

I just want to make sure I haven't made some basic error(s) before I send it tomorrow morning though!

 

If the letter is judged by CAG Admins and members as being useful, then I'd be happy to re-do the wording in a more generic manner if it would be likely to help anyone else.

 

H. x

[BRIGADIER2JCS]

It would be good to have many thanks!!

[teaboy2]

Looks good to me - It will no doubt leave the muppets scratching their heads for a while. Though it is lowell's where talking about here and in my experience, they simply pick and choose what parts to respond too, and completely ignore any main or important points made. Though they will stop calling you, which is important to you and your family.

[Halibutt]

Thanks Teaboy and Brigadier. I'll get that printed off and sent tomorrow then.

 

If they pick and choose what to reply to, then they'll be charged for responses to any further correspondence. If anyone is interested, this is what I sent to Arden:

 

Sarah Powell

Arden Credit Management

PO Box 15276

Solihull

B91 9PN

xx/xx/xx

By Royal Mail Recorded Delivery

 

 

Dear Ms Powell,

 

Account Ref: 123456789

 

I refer to your letter of xx/xx/xx, the contents of which have been duly noted.

 

I am very concerned at your apparent reluctance to acknowledge any of my correspondence with you, regarding the above account since your written agreement to my repayment plan in your letter of xx/xx/xx.

 

All my letters have been sent via Royal Mail Recorded Delivery at my own expense and subsequently, signed for by your staff as having been received. Please refer to my last letter of xx/xx/xx.

 

To date, I have kept to the repayment plan to which you agreed in writing in your letter of

xx/xx/xx. However, you appear to have overlooked this in your subsequent four letters, which have subsequently caused me personal distress.

 

I hereby give you notice that, should you continue to write, erroneously asserting that no payment plan has been agreed, I will have no alternative but to invoice your company for compensation for undue distress caused due to formulating and sending replies to such letters, plus necessary personal expenses incurred.

 

Please accept this letter as full and adequate advance warning of my intended charges.

 

Future invoices to your company (per letter) will be broken down as follows:

 

 

Compensation for distress/time taken to formulate response/compose reply –

per hour (min charge 1 hour):

 

£25.00

 

 

Postage costs per item sent by Royal Mail Recorded Delivery at current rate*:

£01.15

 

 

Printing costs per A4 sheet*:

£00.15

 

 

Photocopying costs per A4 sheet*:

£00.10

 

 

Total minimum charge per response*:

£26.40

 

 

* Subject to rates of inflation at time of response.

 

 

 

 

 

 

 

 

I am sure you will agree that the continuation of your current policy of harassment would not be advantageous to either party whilst I am adhering to the current agreed repayment plan.

 

Please note that I have retained copies of all correspondence, both sent and received, including Post Office receipts, proofs of delivery and statements of receipt of amounts by the Original Creditor – xxxxxxxxxxx, which, in their latest statement of account, includes acknowledgement of the first instalment submitted in my repayment plan (xxxxxxxx letter dated xx/xx/xx).

 

I therefore expect no further correspondence from your company, unless it is:

 

 

 

• Your written acknowledgement and acceptance of the content of this letter
  

 

 

• Correspondence regarding information that you are legally obliged to supply whilst dealing with the above account
  

 

 

• Reasonable periodic review of the existing repayment plan
  

 

 

Please treat this letter as urgent.

 

Thank you for your time and immediate attention to this matter.

 

Yours sincerely,

Halibutt

 

Their response was - "Eeeeeek!"

 

and then a very apologetic letter:

 

 

At least Arden responded appropriately. Lowell will be billed (and the charges pursued in court) should they continue to bully, harass or continue with non-compliance.

Edited March 18, 2011 by Halibutt

[Halibutt]

Thanks Teaboy & Brigadier. I'll get the letter sent off tomorrow then!

 

If Lowell decide to pick and choose what they reply to or simply don't comply, then they'll be charged for my responses and the charges (if unpaid) will be pursued through the Small Claims Court.

[BRIGADIER2JCS]

Can,t use big words or tech with that mob.

[Halibutt]

SAR sent to Capital One by Recorded Delivery, along with the required payment, as informed to Lowell.

 

Just have to see how Lowell/Capital One respond. I have a feeling that Capital One may not have any kind of original agreement as:

 

1. I don't think I ever signed one - certainly didn't receive terms & conditions by return or copy of an agreement.

2. The only thing Lowell could produce was an application form.

 

I'll update when relevant

[Halibutt]

Well, the muppets at Lowell just sent the following:

 

[Halibutt]

Then this:

 

[Halibutt]

So I sent a SAR to Capital One and sent Lowell this:

 

Dear Mr. Bartle,

 

Reference Number: 123456789

Account Now In Serious Dispute

 

I confirm that I am in receipt of your company’s correspondence, dated 26/02/11, 08/03/11 and 15/03/11, the contents of each have been duly noted.

Your company’s response to my request under the Consumer Credit Act, section 78, dated 26/02/11, asserting it to be a true copy of the original agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act, 1974 and would therefore only be enforceable by a court under s65.

However, the absence of any prescribed terms on the alleged agreement means that a court would be prevented from enforcing it under s127(3).

I note that, in your company’s correspondence of 26/02/11, you refer to the case of RBS v McGuffick.

May I therefore take the opportunity to remind you of the current OFT guidelines, to which your company supposedly should adhere, which state:

Section 2.2 (d)

“It is unfair to communicate, in whatever form, with consumers in an unclear, inaccurate or misleading manner… including unnecessary and unhelpful use of legal and technical language, for example, use of Latin phrases…etc.”

Your company’s reference to a legal precedent could, and would be in a court of law, be construed as a contravention of these guidelines.

However, as you wish to refer to legal precedent, I would point to your assertion in your previous correspondence by reminding you of the following, with direct relevance to the aforementioned case:

The judgement in the case of RBS v McGuffick was on the 6th October 2009, however, there was a subsequent High Court Judgement that was passed down on the 23rd December 2009 - Carey v HSBC - and as such, Carey v HSBC became the legal precedent and the McGuffick case, in regards to a CCA, was superseded as of the date of the judgement in the case of Carey v HSBC.

From the judgement of Carey v HSBC:

“Under Regulation 7 of the Copies Regulations, Waksman, in Carey v HSBC [2009] EWHC 3417 (QB) para. 108, stated: ‘I conclude that Regulation 7 requires a copy of the executed agreement in its original form….’ ”

I also note from your response to my CCA request (dated 26/02/11) and the copy of the application form enclosed, to which you refer as an “agreement” that:

 

• There are clearly no prescribed terms i.e. credit limit, APR, repayments etc.
  

or any reference therein, to such being related to an associated document, rendering the alleged “agreement” invalid and most likely, improperly executed, as prescribed terms were not on the original alleged “agreement,” i.e. the overleaf to the first page of the signature form or there being any reference to terms and conditions within the alleged “agreement.”

 

• There is nothing to connect the supposed terms to the “application form” and without the correct and legally connected prescribed terms, the reconstituted terms and conditions that you sent cannot - both “original” and “current” - be assumed to be either relevant to, or directly connected with, the alleged “agreement” in any way
  

 

• The breakdown of credits/debits to the above account that you sent does not truthfully or clearly reflect payments made up until June 2010, and the final figure stated differs from the “amount owed,” that you state on your covering letter, showing a clear disparity of £1126.14. It is, therefore, not a true and transparent statement of account as requested in writing and is both erroneous and misleading
  

 

• The supposed copy of an original “agreement” that you sent, without the inclusion of the prescribed terms, cannot, in law, be considered a valid agreement under the Consumer Credit Act, 1974 and, as such, is simply an application form and is very clearly headed as such in the copy that you sent
  

The above points clearly make the “agreement” that you supplied, in response to my CCA request, unenforceable and also improperly executed as no prescribed terms formed a true part of the supposed “agreement.”

Also, as a result of your company’s past actions in this case, I refer you to my letter of 29/06/10, in which I had no alternative but to formally request that your company ceased its excessive telephone harassment of both me and my family forthwith, due to the frequency of telephone calls (four or more per day) by automatic dialling machine - dates and times of which have been noted and a full and complete record retained.

With reference to this, I feel I must also draw your attention to the recent case of MBNA v Harrison and the subsequent judgement by High Court Judge Nicholas Chambers QC, as the aforementioned calls by your company, over a number of weeks, were the cause of considerable and relentless personal distress, both to me and my disabled mother.

I quote directly from the aforementioned judgement by Judge Chambers:

“(These) calls were a form of torture, oppressively frequent in amount and often without attribution to an identifiable number.”

I am sure that you will also be aware that, should you consider court action in this case, you may produce a “reconstituted” agreement, but you must also provide the original signed and dated agreement. Any court action you attempt to undertake will therefore be reliant on the production of the aforementioned original document(s).

Please be aware that any court action instigated by your company or any of your proposed or appointed representative(s) and/or third parties will be diligently and vigorously defended, both by me and any of my legally appointed representatives.

I will hereafter (within 7 days of the date of this letter) be sending a Subject Access Request directly to the original creditor, Capital One, regarding the above account.

As you will no doubt be aware, Capital One will subsequently have a period of 40 days from the date of such request to supply all relevant information and any and all documents associated with the above account.

Until notification of such compliance, you must cease any further action, processing of personal information pertaining to the above account, and/or collection activities on the above account, including, but not limited to, forwarding, selling or transferring the account to any third party or returning such account to the original creditor.

I hereby undertake to duly inform you of the result of the Subject Access Request, once received from Capital One, in writing, by Post Office Recorded Delivery, within a reasonable timescale. Should you wish to apply for the same from the original creditor, it is your legal right to do so upon payment of any applicable statutory fees.

Furthermore, your company have, to date, continued to ignore both my verbal and written requests for a copy of your formal complaint procedures.

Therefore, I hereby, once again, officially request that you provide the said document(s) as previously requested as a matter of urgency, as I wish to take this matter further with both your company’s complaints department and all relevant regulatory bodies, including, but not limited to, the FSO and Trading Standards, with particular and direct reference to:

· The attitude, responses and behaviour of your staff, both by telephone and in writing

· Your company’s policy of excessive telephone harassment, both in person and by automated dialling machines

· Your company’s continuation in pursuing a genuinely and legally disputed account without provision of legally binding documents

· Your company's refusal and/or inability to properly and lawfully comply with genuine and reasonable written legal requests for information pertinent to the above account

Until a fully compliant response has been received from Capital One regarding my Subject Access Request, and I have notified you accordingly, I expect no further contact from you, unless it is explicitly to acknowledge in writing any and/or all of the following:

· Your absolute compliance with the content of this letter

· Your due compliance with my legal request for a copy of your formal complaints procedures

· Your implicit assurance that you will no longer attempt to pursue the above account and the guarantee of the removal of any and all entries made by your company and/or its representatives on my credit reference file with any and all credit reference agencies

Any failure to adhere to the above request, which results in the necessity for a written reply, will result in the appropriate and reasonable charges being applied for my first and each subsequent response to any correspondence from you which disregards the above points, not limited to, but with specific regard to, undue distress caused by such correspondence and also for time and resources taken to formulate such response(s), the rates of which will be detailed alongside any response to such correspondence in an accompanying invoice without any further written notice.

Yours sincerely,

[Halibutt]

And in return, received no acknowledgement, except letters from the idiots at RED on the desk behind:

 

 

and

 

[Halibutt]

They're now offering me a 30% discount... Now, presumably they've got my correspondence on file. Maybe they don't bother sharing anything?

 

Well, they have now "passed on" the alleged debt (yes, I know it's the same company) and are now threatening to pass it on again. So, they're breaking OFT guidelines by misrepresenting themselves as three separate companies...?

 

Also, if they were sure they had a sound case, surely they wouldn't be offering a discount?

 

Anyway, I'll be ignoring them until the idiots at Hamptons send something, then I'll remind them that the account is in serious disopute and that I still have had no acknowledgement or reply to my letter stating that I'm awaiting a response to my SAR request from Capital One. They had plenty of prior warning.

 

Just fed up with these bullies.

[teaboy2]

Hi Halli

 

If they do not respond to yur SAR within 40 days of the date it was sent, report them or which ever one fails to respond to the SAR to the information commissioners act for failing to respond to your SAR. the ICO will them have to investigate and could fine them as well as give you a small amount of compo.

 

And yes ignore Red and any other letters unless its another solicitors letters, as it seems they know they will not be taking you to court despite there threats to do so. If they where going to, then why they pass it to the red desk. So another breach of OFT Guidelines for threatening court action knowing no such action will/can be taken.

Edited April 8, 2011 by teaboy2
Minor Corrections

[dx100uk]

moved to cap1 forum

 

dx

siteteam