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Lowells/Cap1 2005 - CCA return - fold App Form + V10 T&C's - enforceable?

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I sent my financial Statement to capital one on the 8th of August informing them of my Financial statement

and asking them to accept £1 pm as a token payment.

 

I received a letter back saying they are unable to action my request because

the signature that they hold on file does not match the one on my last letter to them.

 

I called them to resolve the problem regarding my signature and was also told they can’t help

because no proof of income was sent with my financial statement.

I said I will send in the relevant docs required to prove the income.

 

The operator put me on hold to find out what exactly do they require as proof,

when she came back she informed me they cant help even if they have all the information required

unless I pay £800 to stop the default and stop the account being passed to a debt collection agency.

 

I explained I can’t pay that amount because of my recent financial situation

as explained in my financial statement but she was not having any of it.

 

After telling them what I thought of capital One!

I asked if the account can be hurried over to the debt collection agency ASAP

so I can discus my account with an English speaking person

and probably get it resolved much easier than direct with Cap 1.

 

I have previously requested a CCA with no enforceable documents being returned

so I have sent a SAR request which has be acknowledged as received and is being dealt with.

 

Please can anybody help me what to do next

 

Many thx

 

Mark

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Do not speak to them on the phone - you will not get anywhere, and even if it is resolved, they will 'forget' and you will be back to square one. Get everything in writing.

 

I suggest the first thing to do is to write to customer services about the financial statement, etc an dsee if you can get some sense there. But tell them - no phone calls - in writing only


Steven

 

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I CCA'ed Capital One on 1st July which was delivered via Royal Mail Recorded Delivery on the 3rd Of July.

On the 7th July I received documents from Capital One (Listed Below)

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA1.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA2.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA3.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA4.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA5.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Capital1CCA6.jpg

 

Replied on 11th July to these documents stating it does not fulfill the requirements under the CCA

 

Got letter back on the 17th July saying they have provided me with a copy of my original agreement as requested.

 

So I sent a CPR request on the 22nd July which was delivered via royal mail recorded on the 24th July and a SAR request on the 6th Aug which was also delivered via royal mail recorded on the 6th Aug, to this day I have not received a thing from Cap 1 regarding the CPR. Cap 1 have until the 14th Sept (40 days) to supply me wth the SAR.

 

The reason for my help is due to a Notice of Default Seved I received dated the 29th July (Listed Below).

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1DefaultNotice1.jpg

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1DefaultNotice2.jpg

 

Am I to believe that the account is still in dispute and should not have had the Default served?

 

I'm also getting calls all day and every day from Cap 1 even after requesting these phone calls to stop but was told they wont stop calls as I owe them money!

 

Please help me what to do next.

 

Thx

 

Mark

Edited by DebtUpToMyEyeBalls

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Have they send you a default notice ? can you scan/photo it ? (leave dates on but remove all other identifying data)


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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Hi there

 

You are not alone debtuptomyeyeballs... I have constant calls from Debitas (on behalf of Capital One). They drive me crazy, despite me asking them to deal with things in writing.

 

Capital One sent me pretty much the same letters...

and eventually they moved on to getting Debitas on my back...

which I think is their 'in house' collection agency.

 

You need to see a copy of the agreement that you signed when you began the account with them.

My guess is they haven't got a signed copy and so are trying to fob you off with the general terms and conditions leaflet.

.. which is not what you have requested.

You want to see the credit agreement that you signed.

 

This document is important because without it they can not pursue you in court for the money you owe them.

If they can not provide you with it, then they will have great difficulty in collecting the money they are demanding you pay.

 

Keep plodding on and remind them that they haven't complied to your request.

I am sure someone who knows a lot more than me will be along shortly to advise you on what your next course of action should be.

.. but in the meantime, you might find some tips on my thread:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/210991-max-cap1-debt-cca.html

 

Good luck and try not to get stressed about the debt situation... we are all pretty much in the same boat and are trying our best to support one another.

 

:-)


Moodle

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I also sent a Finacial Statement on the 8th Aug with proof of income with a letter asking them to accept £1 token payments while I was trying to get the original signed aggrement via CCA, CPR & SAR.

 

I received this letter today which basically states, we dont care just caugh up the money you owe or we will get a Debt recovery company to get it for us.

 

http://i1019.photobucket.com/albums/af319/Ukmark319/CAP1responsetoFinacialStatement.jpg

 

So not only are they Serving Notice of Default on my account but also threatening to pass it over to a Debt Collection Agency while still in default.

 

Mark

Edited by DebtUpToMyEyeBalls

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Hi DUTME,

 

It should be bump - unless you really did go to the loo lol

 

Do not worry they are morions I too have the letters and have had the calls. As my phone was PAYG it has pay as you gone!

 

I do have a letter fromm the famed ER that states that they do not keep the original agreements but scan in sigs - then they sent a copy of an application which was, IMHO, meaningless.

 

If they persist in calling you I would just have a laugh with the security questions and see how long you can keep them on - my current record is over 14 and a half minutes!! without passing security.

 

GK

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The agreement is a pile of rubbish in my opinion. I take it that your signature was not on the agreement?

 

It has the prescribed terms, but I could write those on a cornflakes box.

 

The default notice is faulty. They must put an actual date to remedy by, not just 28 days. Keep this to yourself for now.

 

The letter saying that they cannot help you as they have issued a DN is missleading.

 

If your account is in dispute, and you have informed them why, then they must take notice of it, but wont.

 

You can try something like this:

 

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. I have additionally placed this account in dispute on xxxxxxxxxxxx.Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. I have to date only received terms and conditions from yourselves.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

 

  • You may not ask for payment against this account.
  • I am not obliged to offer any payment against this account.
  • You cannot register any data with a third party.
  • You cannot take any enforcement action, including registering Defaults.
  • You cannot pass the account on to a third party for collection.
  • You cannot sell the account.

Despite you legal obligations, you have recently issued a Default Notice, contrary to the regulations contained within the Consumer Credit Act 1974.

 

What is a true copy:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

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Many thx Vint1954

 

I will send the above letter today doctored with my details of course.

 

Mark

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Brilliant Letter!! :-)


Moodle

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Brilliant Letter!! :-)

Don't know why we bother with such letters, they ignore them

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I made a Subject Access Request to capital one an they have responded with a letter stating "they are unable to action my request because the signature that they hold does not match the one on my last letter to them". (See Letter Below)

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1Signature.jpg

 

What should my reply be?

 

thx

 

Mark

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I made a Subject Access Request to capital one an they have responded with a letter stating "they are unable to action my request because the signature that they hold does not match the one on my last letter to them". (See Letter Below)

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1Signature.jpg

 

What should my reply be?

 

thx

 

Mark

Did you sign your SAR request?

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I Initialled the letter but did not use my actual signature. They have been responding to other letters and requests (i.e CCA) with the same initial.

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I Initialled the letter but did not use my actual signature. They have been responding to other letters and requests (i.e CCA) with the same initial.

With SAR requests, they are getting firmer.

 

If you resend the letter and sign it, but put a line through it or better still, if you can add this to your letter and sign over it.

 

---------------------------------------

|SIGNATURE | MUST | NOT | BE | COPIED|

|SIGNATURE | MUST | NOT | BE | COPIED|

|SIGNATURE | MUST | NOT | BE | COPIED|

---------------------------------------

 

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Ok Will send again using the "signature must not be copied watermark"...but will the 40 days start from new request or the original?

 

thx Mark

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I have received today another default letter even though I sent the letter in reply #9.

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1officiallyindefault.jpg

 

Cap 1 are still calling at all hours of the day and issuing , what looks like, a real default against me.

 

what should now be my response.

 

thx Mark

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I have received today another default letter even though I sent the letter in reply #9.

 

http://i1019.photobucket.com/albums/af319/Ukmark319/Cap1officiallyindefault.jpg

 

Cap 1 are still calling at all hours of the day and issuing , what looks like, a real default against me.

 

what should now be my response.

 

thx Mark

This is a termination notice. Now that they have issued that, they have unlawfully rescinded the agreement. The default notice states 28 days, where it should give a date.

 

There is nothing that seems to stop them ignoring your letters, if they have a mind to.

 

Have you sent them the telephone harrassment letter.

 

They do not have a proper agreement to go to court with, but they will keep on trying to collect.

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Yes I have sent them a call complint letter...thats another joke cap 1 are heartless.

This is the response they gave me.

 

 

http://i1019.photobucket.com/albums/af319/Ukmark319/callcomplaint1-1.jpg

 

So I sent them this letter.

 

http://i1019.photobucket.com/albums/af319/Ukmark319/responsetoreply1.jpg

 

 

They responded with this letter.

 

http://i1019.photobucket.com/albums/af319/Ukmark319/callcomplaint2-1.jpg

 

thx Mark

Edited by DebtUpToMyEyeBalls

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Then send them:

 

Re: Harassment by telephone

 

Dear Sirs

 

I am writing again in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have both verbally and in writing, requested that these stop, but I am still receiving calls.

 

For obvious reasons, I require all further correspondence from your company to be made in writing only, as instructed.

 

For data security reasons, bearing in mind the current situation surrounding identity theft. I have taken a reasonable and lawful decision, not to discuss financial matters or answer security questions over the phone.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997 and CPUTR 2008 regulations

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and logged for future reference to the Harassment Act stated above.

 

What you must do now.

 

1 Cease all calls to this number with immediate effect and delete this number from your files and system.

2. Confirm that you have complied with my request.

 

Please confirm in writing, that you have actioned points 1 & 2 above.

 

 

Yours faithfully,

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Hi,

 

Yes the bog standard letters.

 

I too received them and I used to enjoy winding the threat monkeys up then after I got bored I binned my PAYG and they have no contact number. Now I am getting cards and letters from Power 2 Contact telling me they are coming to visit.

 

Well I bought tea and biscuits and they did not turn up so when they do they will be invoiced.

 

I already have aletter from Ms R telling me that they do not keep agreements so they can go hang!

 

Don not get depressed - get even!!

 

GK

PS your full name is on bottom of letter 2 Up there ^^^^

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