Cabot/Restons Claim Form - old cap1 card 'debt'

[haldeman]

Hi Guys,

 

CCA request return - for Capital One, they sent me what purported to be a reconstituted copy of an agreement from 1998 and told me that they were quite confident that it was fully enforcable. I, of course. have no way of knowing whether this copy is accurate or not. Also, I suspect that they have sent a reconstituted copy because they don't have the original. I have sent them a subject access request to try to flush this out. Do you think I should respond to their letter saying that I don't recognise the document and would expect them to produce the a copy of the executed agreement in order to confirm that the debt is enforcable in court? Or something else?

 

As ever, your help is much appreciated. I think you guys are providing a hugely valuable public service.

 

S

[haldeman]

Thank you very much, sunnybeach. Capital One have set Fredricksons back on me so I plan to put together a letter reminding them that without a copy of the executed credit agreement they will struggle to take the matter to court. Do you happen to know if there is a template for this on CAG? If not I'll post a draft for comment.

 

S

[haldeman]

Hello again guys,

 

I've drafted this letter in response to Capital One's CCA response. Comments and suggestions would be most welcome.

 

 

Thank you for your letter of 18 June, 2012 in response to my request for a true copy of the credit agreement relating to my account. You have provided me with what you describe as “a reconstituted copy of your original agreement.” As you will be aware, OFT Guidance on this matter (Paragraph 2.21) confirms that any reconstituted copy must be a “true copy” of the executed original. I have no means of knowing whether the documentation that you have provided is in fact a true copy. After the passage of more than 14 years I am also unable to confirm that “a full copy of the terms of your original agreement” were provided prior to signature.

 

 

 

The fact that the interest rate example contained in the reconstituted copy is erroneously calculated makes me doubt that it is in fact a true copy. You will notice that paragraph10, Financial and Related Particulars, provides an interest rate example prepared on the basis of bank Base Rate at the date you propose that the agreement was entered into, April 1998. The interest rate is calculated by the addition of a margin of 9.67% to the prevailing bank Base Rate. Using this formula, the agreement states that an interest rate of 16.67% will apply from October 1998. Yet bank Base Rate at the time you suggest the agreement was entered into (i.e. April 1998) was 7.25%, which would give an interest rate of 16.92%, a not insignificant difference of 0.25%.

 

 

 

At the very least this casts into doubt the proposition that the reconstituted agreement contains all of the prescribed terms required under section 2(2)(a) of the Consumer Credit Act 1974 (“the Act”). But quite apart from this error, I find it hard to believe that I would have taken up an offer of a credit card at these high interest rates given my financial circumstances at the time.

 

 

 

Having failed to provide a true copy of the agreement I consider this account to be in dispute. The documentation that you have provided does not conform to sections 60(1) and 61(1) of the Act and would therefore only be enforceable by a court under s65. Section 61 (1) provides that a regulated agreement is not properly executed unless it is in a document containing all the prescribed terms and conforming to the regulations made under s60 (1). This being an agreement that pre-dates the CCA 2006, the absence of any prescribed terms within the signature document as provided, means that a court would be prevented from enforcing it under s127(3).

 

 

 

 

 

Yours sincerely,

Edited July 12, 2012 by haldeman
Cut and paste typos

[BRIGADIER2JCS]

My expectation is that their reply will be '' the reconstituted agreement satisfies sect 77/78

of CCA 1974 and there is therefore no dispute''.

 

I suggest addressing this to their Data Controller

marked formal complaint.

 

Your letter is fine you do not need a template.!!!!

[haldeman]

Many thanks Brigadier and (opps - what happened to the other guy?). I'll send this off recorded delivery, no signatures, tomorrow and send a copy to the Data Controller.

 

S

[BRIGADIER2JCS]

Many thanks Brigadier and (opps - what happened to the other guy?). I'll send this off recorded delivery, no signatures, tomorrow and send a copy to the Data Controller.

 

S

The post was moderated.

[haldeman]

Two things have happened this week. Firstly Cap One wrote in response to my SAR request, long after the forty day time limit was up, saying that they couldn't deal with my request as I had not signed the letter. Lots of advice already on CAG for that one so I will respond in suitable terms.

 

Today I received a response to my letter telling them that they had failed to provide me with a true copy of the CCA. They ignore the fact that the interest rate was wrongly calculated in the copy they provided, and they claim to have sent me a "scanned copy of the signature page from the Agreement," which they haven't.

 

They say in terms, "We do not retain the original of the agreement which is returned to us, but scan the signature portion of the agreement and retain this within our account system." That, I would have thought, was "game over"?

[Old Cogger]

Oh dear! not another UE fron crap one? true to form.

[haldeman]

UE?

[Bandit127]

UE?

UnEnforceable agreement...

[Bandit127]

Have they maintained that what they have supplied is compliant with your CCA request?

 

If not, they are still in default of the CCA 1974. A letter - account is in dispute and they are to cease recovery activity forthwith according to OFT guidelines.

 

If they have:

A letter - account is in dispute because you cannot verify that the sums demanded are accurate. Recovery activity will cease forthwith according to OFT guidelines.

Separately. an official complaint to them stating that they are using deceptive methods in claiming a compliant response to your request. Point out why it is not compliant (in detail).

Wait for them to close the complaint (or 8 weeks have elapsed) and raise a complaint with the FOS.

[haldeman]

Ah - thank you!

[haldeman]

Two things have happened this week. Firstly Cap One wrote in response to my SAR request, long after the forty day time limit was up, saying that they couldn't deal with my request as I had not signed the letter. Lots of advice already on CAG for that one so I will respond in suitable terms.

 

Today I received a response to my letter telling them that they had failed to provide me with a true copy of the CCA. They ignore the fact that the interest rate was wrongly calculated in the copy they provided, and they claim to have sent me a "scanned copy of the signature page from the Agreement," which they haven't.

 

They say in terms, "We do not retain the original of the agreement which is returned to us, but scan the signature portion of the agreement and retain this within our account system." That, I would have thought, was "game over"?

 

 

I'd be interested to get the Brigadier's view on this, if he's around?

[Old Cogger]

They will no doubt sell it on? if they have not already. or send a bit of paper with your name & address on then swll it on

[BRIGADIER2JCS]

Good morning Haldeman,This storing only a copy of the signature panel of agreements has been emerging over some years now and would seem to have been accepted as ''custom and practice''.

I have never yet seen this tried in law, but my guess would be that it is probable given the production of compliant Ts & Cs and statments showing use of a credit facility that this would be allowable as proof that an account existed, but as to enforceability I am unsure as said I don't think this has been argued.

[haldeman]

Thank you all. I doubt they'll want to make a test case out of me, so I'll rest more easilly for now. They haven't actually supplied a copy of the scanned signature so I've asked then to do so now, if they actually have one.

[haldeman]

With help from CAG I've been doing battle with Capital One for the past year. I CCA'd them and got a reconstituted agreement that stated the wrong interest rate so I've been arguing with them that they have failed to provide a true copy. I've had perodic letters from Freds and one from Bryan Carter. In each case I explained that I had not been provided with a true copy of the CCA and until I received one they should not be attempting enforcement. It seems pretty clear after all this time that they don't have a copy of my agreement, which dates back to 1997/8. Nor do they have a copy of my signature from the agreement which they claimed to have at one time.

 

Last June I sent them a SAR. After 35 days they wrote asking me to prove my identity. I pointed out that they had been corresponding with me at the same address for more than four years but gave them the id info anyway. In subsequent letters to Freds and Bryan Carter I pointed out that in addition to having failed to prove a true copy of the CCA, their clients were also seriously in breach of their obligations in respect of my SAR. Naturally, no one bothered to respond to me on these points.

 

This morning I received a cheque for 10 pounds from Cap One. No explanation, no covering letter other than a remittence advice. I'm guessing its a refund of the fee I paid for the SAR. But why? And why now?

 

Has anyone else had this sort of thing? I can't tell whether this is their way of throwing in the towel, in which case I should keep my head down, or whether I should proceed with a complaint to the Information Commissioner. Presumably, simply refunding the fee does not rid them of the obligation to comply with my SAR request?

 

Many thanks in advance for any thoughts you might have.

[BRIGADIER2JCS]

ODD, may have given up but keep a check on credit files!

[42man]

You might like to google this high court case too for interest Kotecha vs Phoenix

[citizenB]

Have you received your SAR ?

 

If not, then you should make a complaint to the Information Commissioner. It is irrelevant that they sent your £10.00 back.

 

You made a legal request - unless, along with the returned cheque, they have advised they are not in a position to comply with that request - they are in breach of it.

 

They were wrong to wait so long before they wrote and asked you to prove your identity - 35 days !! The ICO advises any further information required should be requested in a timely manner. I hardly think that 5 days prior to the time for their compliance is a timely manner.

 

You need an explanation why they returned your cheque and despite this, they are in breach.

[haldeman]

You might like to google this high court case too for interest Kotecha vs Phoenix

 

Very interesting, thank you. In my case the reconstituted agreement contains a calculation of the APR being X% plus bank base rate giving a total of Y%. Only trouble is bank base rate on the date they say the agreement was signed does not tally with the calculation contained in the reconstituted agreement. I realize that APR is not a prescribed term, but it seems to me that this error gives rise to the suspicion that the reconstituted agreement shows terms as they existed at some other date. If that is the case how can they, or I, be confident that it is a true copy of the original.

[haldeman]

Have you received your SAR ?

 

If not, then you should make a complaint to the Information Commissioner. It is irrelevant that they sent your £10.00 back.

 

You made a legal request - unless, along with the returned cheque, they have advised they are not in a position to comply with that request - they are in breach of it.

 

They were wrong to wait so long before they wrote and asked you to prove your identity - 35 days !! The ICO advises any further information required should be requested in a timely manner. I hardly think that 5 days prior to the time for their compliance is a timely manner.

 

You need an explanation why they returned your cheque and despite this, they are in breach.

 

Thanks CitizenB.

 

No, I never did get the SAR. I only wanted it to see if they had a copy of the original credit agreement, or the copy signature that they claimed to have. It's pretty clear now that they don't so I wasn't really bothered about it.

 

I wasn't going to make a fuss about it for so long as they are leaving me alone, which they are for the present. Do you think I should make the complaint to the Information Commissioner in these circumstances? I have this irrational fear that if I irritate Crap One they will have another dig around in their archives and come up with the CCA!

[citizenB]

IMHO, I would be inclined to follow through with a complaint to the ICO regarding the non compliance of SAR.

 

I doubt very much that Capone would have provided a copy of the CCA or the t&cs within that anyway.

 

Again, JMO, if they were to find any data, having implied by their actions that they dont have any.. they are guilty of misleading you.

[haldeman]

I thought my latest letter to Freds might interest or amuse some of you.

 

Thank you for your letter dated 25 February, 2013. Your continuing failure to address the entirely reasonable questions raised in relation to the alleged reconstituted credit agreement that your clients produced with their letter of 18 June, 2012 has led me to review this matter more fully.

 

 

 

• On 16 July, 2012 I wrote to your client pointing out that the reconstituted agreement contained an error in the calculation of the rate of interest due. In extensive subsequent correspondence your clients have failed to offer any explanation for this error. Clearly an error such as this casts considerable doubt on the veracity of the reconstituted agreement and it cannot reasonably be considered a true copy of the original.
  
• In a letter dated 15 August, 2012 your client wrote suggesting that it had sent a copy of a signature page from the original agreement with its letter dated 18 June, 2012. No such copy was received and subsequent requests to produce a copy have been ignored.
  
• On 11 July, 2012 I made a subject access request (SAR) to your client under the provisions of the Data Protection Act 1998. Your client has still not dealt with my request, despite their statutory obligation to do so. They have however sent me a cheque in the sum of £10.00 without explanation. They have also written to me acknowledging an application for a refund of Payment Protection Insurance that I did not make. They then wrote denying the application.
  

 

I cannot recall as far back as 1998, when your clients allege the agreement was entered into, but the only conclusion that I can draw from this chain of events is that no credit agreement ever existed. If this is the case you will be aware, as will your clients, that any debt is unenforceable. You will also be aware that the simple response to this letter would be to produce a copy of the original alleged credit agreement, but your clients have previously stated in writing (15August, 2012) that they do not hold a copy.

 

 

 

I await your response with interest.

 

 

 

Yours faithfully,

Edited March 4, 2013 by haldeman
crappy typing

[citizenB]

Nice one haldeman - please keep us updated