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Hi,

 

I sent a CCA request a week or so ago- received what seems to be a common reply today stating they'd complied with the request and they've supplied nothing more than a copy of their current t&c's.

 

No signatures, dates, endorsements etc.

 

The card's quite old, so I'm sure the £12 on the current t&c's is incorrect.

 

Suspect they're trying to fob me off.

 

Where too next- a dispute letter?

 

Thanks :)

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  • 2 weeks later...
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Hi SB100.

 

Are you intending to reclaim your charges? If so, you will need to list these from your card statements. If you don't have these, or what you have is incomplete, you will need request them using a Data Subject Access Request (DSAR).

 

Post back and we can take it from there.

 

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I sent them the following letter on the 13th November;

Re: Your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions. I must inform you that this is not sufficient to comply with the request, and that your company is in default under the Act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

They replied yesterday saying they'd complied fully and that they didn't have to send a copy of the signed and correctly executed agreement to comply with the Act.

 

What I don't understand is why they wouldn't if they had it...

 

They've invited me to make a complaint to the Ombudsman and have said any action I take will be defended. I forgot to bring the letter in today, but I'll scan it and post it later.

 

Where too next? Any help would be appreciated.

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Hello SB100!

 

The above Letter is fine, that says it all.

 

If they have failed to produce anything that resembles an Agreement in response to your s78(1) Request and also in response to your Subject Access Request, then it seems only reasonable of you to stop all Payments.

 

What happens after that, I regret, will be the usual Harassment. Capital One will switch on their Harassment System, and the Calls and silly Letters will start.

 

I hope you are sitting down, because they could now make the thick end of 1,000 Calls before they will give up (I can say this from direct experience).

 

The pattern seems to be Invalid Default Notice, then they'll pass it on to pond life further down the Debt Industry food chain.

 

Then you'll be in the position of fighting off the usual round of Debt Collectors.

 

Then you'll need to put pressure on them all to remove any Adverse Data.

 

However, you probably have all of the Harassment to look forward to!

 

One day, a bank CEO may yet be hauled into Court on a Harassment charge, and then all of these silly Calls will start to come to an end.

 

In your position, I'd just get ready for them, and resign yourself to the fact that there is little you can do to stop them once they start.

 

Log all Calls via Time/Date and Calling Line Identity (CLI), and if you do speak to any of them, only do so if you can Record the entire Conversation. Never answer any Security Questions, and never get into a long Conversation with them, as there is absolutely no point. The staff who Call you are just trained Hoodies who have an offensive mouth as their only asset in life.

 

All you ever want from them if/when they Call is the name of the Caller and, if you can tease it out of them, the name of the Manager who Authorised the Call. You may not get that far before the insults and threats pour out, so just hang up if the Call is going nowhere.

 

If you have not already done so, send them the No Telephone Harassment Letter, along with the Text to say No Visitors. Something like this:

 

I am writing in relation to the quantity and frequency of telephone calls that I have recently received from bank/DCA, which I deem to be personally harassing. It has been our Policy for several Years now to avoid using the Telephone when handling financial matters. In view of this, we will never answer Account Security Questions over the Phone rendering any inbound Calls from bank/DCA totally pointless unless you are willing to be Recorded committing clear breaches of the Data Protection Act 1998.

 

I now require all further correspondence from bank/DCA to be made in writing only.

 

After taking advice, I am of the firm opinion that your continued pursuit is in clear violation of the Administration of Justice Act 1970 Section 40 and also the Protection from Harassment Act 1997 Sections 1-3 as well as breaching a number of the Office of Fair Trading (OFT) Debt Collection Guidelines.

 

If you elect to 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, the Office of Fair Trading and also the Police, meaning that your Company may be liable to a substantial fine and the employees or Managers responsible will be made the subject of a Criminal investigation.

 

Furthermore, I will report your Company’s continued Harassment actions to any such regulatory authorities as I see fit. This Harassment Warning applies to any and all dealings I may have with your Company, irrespective of the alleged Account in question.

 

In the event that you intend to escalate the above Harassment to include Doorstep calls by your Employees or your Agents, please be advised that under OFT Rules, you can only visit me at my home if you make an appointment and I have absolutely no wish to make an appointment with you. There is no need, as Written Communication is quite acceptable in Law.

 

Please note, there is only an implied license under Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore, take note that I revoke license under Common Law for your Employees, or your Agents or your Representatives to visit me at my property and, if you do so, then you will be liable to Damages for a Tort of Trespass and Civil Action will be taken.

 

All telephone calls from bank/DCA will be Logged via Calling Line Identity (CLI), Date and Time, and any Messages or Conversations will be Recorded.

 

Indeed, send the above to anyone that threatens to send around a Door Step Collector. They all do at some stage, even the main pompous banks...they are all the same I regret, but some reveal their true colours sooner than others.

 

I hope this helps.

 

Cheers,

BRW

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Thanks for that. I sent them the letter in post no4, to which they replied that they've sent everything they needed to.

 

I haven't sent them an SAR - should I do so now?

 

Once again, f&f would be the ideal situation to put this to bed.

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Hello SB100!

 

If you can spare the £10 plus Special Delivery, I would indeed send them a SAR. If you are dong battle with any banker, then you need to see everything you can, and the Data Request can produce some interesting things, and/or it can confirm other issues.

 

WRT Full & Final Offers, please see Post #55 on your MBNA Thread.

 

Cheers,

BRW

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  • 2 weeks later...

Another letter received- round and round in circles we go.

 

They just don't seem to understand that if they show me an agreement thats been properly executed I will pay them. Surely this can be used in my defence should it come to court? Their refusal to provide it will result in unneccessary costs and unpleasentness. That is, if fact, if they have one.

 

Is there any way in which I can force their hand? Any help would be appreciated.

 

cap1161208-1.jpg

 

cap1161208-2.jpg

 

cap1161208-3.jpg

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  • 3 weeks later...

Ok, have sent off the SAR.

 

I have also sent a telephone harassment letter- although it hasn't stopped the calls. They've sent me a letter saying they're looking in to my complaint...

 

In the mean time, all I want is to see if they have a signed agreement. If the SAR doesn't include this is there any way I can force them in to complying?

 

All I really want to say is that if they let me have a properly executed agreement I'll pay them.

 

No need for collection activity and nastiness- and if they refuse and incur extra costs I'll use their refusal to comply with my request in my defence.

 

Any thoughts?

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SB was this card in exsistance before april 2006?....

 

you coudl send them a freedom of info request,,,,, that means they have to give you everything they hold and have ever held......

 

onthe telephoen thing. if you are with BT and you call them giving them the telephone no and also you have made a written request..... bt will phone them and warn them off. if they call again after that BT will take legal action against them:)

rockin all over the world

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Yep, well before 2006- about 1998 from memory, although I can't confirm this as they won't send me proper paperwork...

 

I use BT right to refuse at home, and they don't have my mobile, but they've tried me twice at work in the last two days- and been told on both occassions that I can't come to the phone when at work.

 

Assuming nothing much comes with the SAR, how do I do a freedom of info request? Can you point me in the right direction?

 

Thanks- I'm very grateful :)

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3rd igloo on the left

missions post deepest suffolk

 

Dear Sir/Madam

 

 

Please consider this a formal request for all and any data in any form tha you hold on me.

 

I am making this request on todays date under the Freedom of Information Act 2000

 

One of your victims...

 

there you go..... that shoudl be more than enough... make a note as theyonyl have 40 working days to respond, there after it is an offence.

rockin all over the world

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Hi SB100,

 

I'm joining your thread as I also trying to get an agreement from capone. Some hope! Like you I just want to say "have you got it, or haven't you?" Clearly if they had proper agreements they would be sending them.

 

Will be very interested to see what they send in response to your FOI letter. What a good idea.

 

DD

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Here's what came with the SAR. Please note that I did specifically ask for a true copy of the CCA.

 

Please note paragraph 3 on the second page, which, to my understanding, is deliberately misleading..

 

We are not obilged to send an original signed copy of a credit agreement etc

cap1SAR034.jpg

 

cap1SAR035.jpg

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Typical Crap One behaviour. They seem to think that the rules do not apply to them. They have had hundreds of CCA requests through their system but leave it to a fictional character (it is said that E Renshaw does not even exist!) to spout their version of the law.

 

If the template letter was used to request the CCA, with the correct payment, and there's proof they got it, then you could follow up with a modified copy of this one (post 3 in thread): http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172071-letter-co-solicitors.html#post1856406 - THEN see what they say!

 

What you're telling them is that the document(s) provided do not fulfill the request, they've now gone past the time limit allowed to deal with your original request, and failed.

 

Obviously the issues of them calling you is awkward as the offshore call centre staff have received no training in how to deal with not being able to speak to you at work, so they just hang up and leave it for the next monkey to have a try! I've got something going on with C1 myself that is really annoying as I'm not the customer they want to speak to...

 

You may need to say that you are sending the letter as an official complaint, according to their own procedures, as they've claimed it was their final response. That may help, as they can't really say anything more if they've already given a final response...!

 

Edit: You added the SAR reply while I was typing. A lot depends on how your SAR was worded. Usually it's just for copy statements, which is all most would want. If the request had been expanded to request a copy of everything they have on file about the person, which is then a true SAR under the DPA, they could not really refuse to include their file copy of the CCA in that. This may have been one side of the original document, if it had been scanned into a storage system and the original destroyed, as seems to happen so often.

Edited by hillards
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Thanks for that hillards. I've just read the letter I sent them and compared it with the letter in the thread you indicated and they're pretty much identical.

 

Their responses can be seen in my posts 9 and 10 above.

 

This is why I decided to Subject Access Request them, in the hope that they may send the CCA, but as you can see they've just invited me to CCA them again!

 

**Edited to add that the CCA was done correctly from template N by special delivery, fee paid and cashed (postal order).**

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...they've just invited me to CCA them again!

Poor old C1, they are not doing themselves any favours by not checking the requests properly and, in this case, telling you to go round the loop and try again.

 

(BTW: It's always worth asking that the correct template was used as there are 'other' websites that have similar stuff but may have missed vital parts of the actual request..., people then find CAG and say 'But I sent a CCA...' which could then be shown to be flawed)

 

Not much more you can do really. If you've told them it's not good enough and you contest their version of what a CCA document should look like, on the grounds they have not supplied a true copy, then you might just have to remind them of the letter, that you only gave them so many days in which to comply, and that you now consider this to be an end to the matter?

 

The invitation is open for them to take it to show the judge if they think it will stand up in court. Otherwise they don't seem to have much choice left.

Be good to those who give you advice that helps - click the star to give them your thanks by way of a reputation credit.

 

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Hello SB100!

 

Thanks for the PM, will try to help.

 

CrapOne are just being their typical useless selves in trying to avoid sending you a copy of your alleged Agreement in the Subject Access Request.

 

I'd send them a Letter Before Action (LBA) in relation to their failure to comply in full with your Statutory Subject Access Request. Maybe use and edit the CAG Template.

 

The main Library is below where you will find a few other letters that may also help:

 

Bank Templates Library

 

The S.A.R. LBA letter you want (edit to fit your own needs) is this one:

 

Data Protection Act - Non-Compliance - Template Letters

 

I'd add a line to say that when they have sent you absolutely everything, you want a letter from an Officer of the bank confirming they have let you have the lot. No letter, then they must send you whatever it is they are holding back that is preventing them from sending you that confirmation!

 

I'd also have a read of the following:

 

Re: Letters from DTI /Oft Regarding CCA1974 Issues - Post #49

 

...which is a letter from the Chief Executive of the OFT to the MP Sion Simon, regarding CCA Requests. This confirms the OFT think that a CCA Request response must include the Original Terms and the Current Terms (if varied). The OFT also feels that it would be likely that a Court would want to see the Original Agreement...

 

...where the veracity of the Agreement produced could then be tested before the Court where the onus of proof is on the Creditor.

 

John Fingleton

Chief executive

Office of Fair Trading

21/11/2008

 

In effect, that's what I and many others on CAG have been saying for ages: only the Original Agreement will do in Court. Before Court, it's entirely correct that in response to a s77-79 CCA Request, the Consumer should be given a true copy of the real Agreement, together with both the Original Terms and the Current Terms (if varied).

 

Maybe print a copy of the above OFT letter to shove under CrapOne's bugle? Just don't let them stray too far away from reality and into a little fluffy banking world of their own.

 

The Consumer Credit Act 1974 was created to protect Consumers, not the banks. They keep forgetting that. Sadly, so do many Judges too, so it's our job to keep reminding them at every opportunity.

 

Cheers,

BRW

Edited by banker_rhymes_with
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If they have sent current T&Cs they have complied with their obligations under s78 as the actual requirements (as modified by the 1983 regs) are really quite modest (and, quite frankly, useless).

 

You have a choice with regard to the calls. You can write a strongly worded letter (based I suggest on the one in my Clydesdale thread - http://www.consumeractiongroup.co.uk/forum/other-institutions/118161-clydesdale-financial-services.html - post #30, obviously with details of circumstances changed) or you can collect evidence and take them to court. Depends on whether you want the harassment to stop now or revenge - up to you

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