Capital 1 Debt Sold on to Lowell Financial

[Kafka]

Re: Capital 1 Debt Sold on to Lowell Financial

In 2012 the charges would have been changed to £12 - they'd have gone up from £10 until about 2005 when they'd have got to £25, then the OFT had a flid at the CC companies and they all reduced them to £12. So unfortunately that doesn't help.

For info - the charges in 2005 were £20 as I have the statements detailing them in front of me.

As I recall, £20 was the industry standard in 2005, although a few like Citi did raise them to £25 before the 2006 OFT report led to them all reducing them to £12. Checking back my old Citi reclaiming spreadsheet they raised them to £25 as early as April 2004, but that wasn't common as I recall.

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Draft document following all the information you have given to me Amethyst for which so many thanks! Let me know if I have missed anything or it does not make sense or there are elements I should take out.

[Amethyst]

Re: Capital 1 Debt Sold on to Lowell Financial

I'd would leave out the ' the following statements are made............... relevantly qualified advisors I have approached in this matter' - well unless you have been to CAB or a Law Centre, but really it is irrelevant for the purposes of the WS.

Otherwise yes it sounds good.

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Ok have taken out that point from the draft. Will now prepare and email the final submission documents and place in post or deliver the ws/documents myself by hand this evening. Will also check Lowells?BC's information for their email address and send to them and the court. Telephoned the court and they advised to send the email to the enquiries address as published for contact.

[Madz]

Re: Capital 1 Debt Sold on to Lowell Financial

Following with interest, I have recently been in court against Lowell's, hearing adjourned for me to supply details of PPI and submit a new witness statement and the claimant to produce to the court a copy of the original credit agreement. I'm particularly interested in the different versions of T&C.
Ps your wording in letters etc is excellent, wish I could be as good!

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Thanks Madz, will take a look at your posts. I could not have responded effectively to the information sent to me by BC last week without this forum and the experience of the Founder Members. Will definitely keep the posts up to date.

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Getting really wound up now about Lowell. In addition to their response to my request for information under s78 not being a correctly reconstituted agreement, and not even being referred to as such by Bryan Carter basee on the information I have copied what additional requirements of the paperwork they have supplied would render Capital One's original agreement unenforceable under s127(3)? I thought that the page that you signed had to have on that same page, not overleaf, or on any additional pages certain points pertaining to the agreement, eg the interest rate in force at the time. Any additional ammunition gratefully received.

[Amethyst]

Re: Capital 1 Debt Sold on to Lowell Financial

The terms need to be within the agreement, however that can mean overleaf or in accompanying leaflet / sheets so long as referred to on the signature page or obviously attached. ( eg/ I confirm I have read the attached terms and conditions' / ' By signing this credit agreement you agree to be bound by the terms and conditions overleaf' etc etc above the signatory box.

Four corners (which is the 'same page as signature' argument died a while ago)

Your argument is they have not complied with the consumer credit act as they have not send you your original credit agreement - therefore you can say you did not sign the document they have sent you - thus s.61 and s.127 kick in as it is pre2007

[MENTION=37786]FlamingParrot[/MENTION] [MENTION=5354]mystery1[/MENTION] would be able to explain better technically.

[mystery1]

Re: Capital 1 Debt Sold on to Lowell Financial

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

178. Ms Tolaney contends that on those assumed facts, the document signed by the debtor did indeed "contain" the Prescribed Terms. I agree for the following reasons:
(1) As described, it is hard to see the form and attached terms as anything other than one document. It is not suggested that there were separate page numbers on the terms attached but if there were, on these assumed facts, it would make no difference;
(2) The signature page itself makes clear that it is incomplete as a document and needs something else because it has no terms on it at all and makes specific reference to the terms "attached"; it only makes sense if something else goes with it; equally pp 198-201 need something to go with them, not least a place for the applicant's details and signature;
(3) The signature page refers to a credit agreement regulated by the Act and so makes clear that it is the first page of an agreement for which there must be other pages;
(4) The signature page and terms are presented to the debtor as a package;
(5) This would satisfy the notion that the Prescribed Terms can be identified within the "four corners of the agreement" - see Hurstanger v Wilson [2007] 1 WLR 2351 per Tuckey LJ at para. 11.




I would also reiterate again that s60,61,65 & s127 have nothing to do with s78. You can have an agreement that when signed is 100% valid as per the CCA but when asked for a copy under s78 the lender adds/subtracts a term and thus it's unenforceable under s78(6) as it's not an "honest and accurate" copy (true copy).

You can also have a word perfect copy under s78 and thus enforceable under s78 that fails to have a prescribed term which is obviously unenforceable under s127(3).

You need to think what was there at inception and then work out if there are errors. Then you need to think what these errors mean. Were they fatal flaws under 127 etc or just a bad copy under s78.

M1

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

I have just scan read the document at the link given in it's entirety and will go through this again and pick out anything relevant to this case. As Amber states since the terms and conditions that immediately follow the form signed in 1997 were not in issue by Capital One until 1999/2000 Version 3# they are definitely not an accurate reflection of the terms agreed to in 1997. Looking through the information on the link given it talks about a claimant referring to the document they have produced as a reconstituted agreement. At no point have BC/Lowell indicated that they are providing these documents as a reconstituted agreement under s78(1). The agreement copy they sent at pages 1-6 are clearly intended to be the Terms Associated with the Signed Page. Without looking at the requirements of s61 and s127 the agreement copy they have supplied is unenforceable by reason of it not being a true copy of the agreement in use in 1997. The link clearly indicates that "the signature page is only complete with the other attached pages that were issued at that time". The original pages attached to the form are not in the information pack. Since the Terms supplied are not those attached to the signature page of 1997 then until that is produced it is impossible to see if the original document contained the prescribed terms to be enforceable under s61 and s127. Will have another read of the information in preparation for the hearing.

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Hope it is ok to ask for clarification of the previous message.

I believe I fully understand the first two points you have made. The third point "You need to think what was there at inception and then work out if there are errors. Then you need to think what these errors mean. Were they fatal flaws under 127 etc or just a bad copy under s78." I do not understand. Since I have no copy of the original 1997 agreement, as the copy BC have finally sent more than threee months after the s78(1) request is the version number 3# from 1999/2000 as opposed to the terms at inception from 1997 how can I think what the terms in it were, or indeed if there were any fatal flaws?

[mystery1]

Re: Capital 1 Debt Sold on to Lowell Financial

It is difficult to remember what happened long ago and many do not have a file of old paperwork. However it is up to you to convince a court that the claimant has not complied with the statute and the claim cannot succeed. None the less that's what you have to do. It's easier to argue a recent copy is crap than the original but it can be done.

http://www.bailii.org/ew/cases/Misc/2012/19.html

M1

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Thanks for your response, I think I understand the way to approach this.

The link you have provided is most enlightening. Therefore as part of my defence to ensure the claimant is not given leave to continue the case on submission of the relevant agreement details to the court from 1997 would be on the lines of:

"The signed page which I can barely read does not make any reference to the prescribed terms. I think I can decifer that the signed form states that all Terms and Conditions pertaining to the agreement were overleaf and this in itself implies that when I return the form I have no copy of the Terms and Conditions of the agreement I have just signed. On the face of the form if I have managed to decifer this correctly it indicates that the Terms Overleaf represent the entire terms at that time and no further documentation would be issued prior to the credit card itself.

Whilst clearly it is reasonable to expect that there would have been Terms and Conditions overleaf to the form signed I have no recollection of these including the prescribed Terms. The two areas that I question as being in the format of the prescribed terms are information concerning the interest rate in force at the time, and details concerning the method and timing of payments and the amount of those repayments, percentage payment required each month etc. The detail within the interest rate section shown on the version issued in 1999/2000 at pages 3-5 is very precise, I am of the opinion that the reverse of the application form did not contain similar detail, and was silent on this point. Also that the clause giving information on repayments wouldnot have contained the required informationt."

"The submission that the claimant has made requests that the Defendant's Defence be struck out under Part 3.4 Civil Procedure Rules and Judgement be entered in favour of the Claimant and adds their costs. I submit that the information provided by the agreement clearly does not meet the requirements of s78(1) as it has been demonstrated that the claimant has not supplied a true copy of the original agreement.

Having requested a true copy of the credit agreement I signed in 1997 almost five months prior to this time I have yet to receive this from the claimant, and therefore conclude that the claimant has failed to comply with their obligations under s78(1) of the Act rendering the agreement they have supplied unenforceable. Since no copy of the original true agreement signed in 1997 has been found on the balance of probabilities as discussed today I would also request that the claim be permanently struck out due to the lack of evidence that the original agreement in 1997 ever contained the prescribed Terms outlined in s127(3)." etc

[mystery1]

Re: Capital 1 Debt Sold on to Lowell Financial

"The signed page which I can barely read does not make any reference to the prescribed terms. I think I can decifer that the signed form states that all Terms and Conditions pertaining to the agreement were overleaf and this in itself implies that when I return the form I have no copy of the Terms and Conditions of the agreement I have just signed. On the face of the form if I have managed to decifer this correctly it indicates that the Terms Overleaf represent the entire terms at that time and no further documentation would be issued prior to the credit card itself.

You sound like you're guessing. You do not need a copy to retain if you signed at home (for example) only if at the bank branch (again for exampe)

Whilst clearly it is reasonable to expect that there would have been Terms and Conditions overleaf to the form signed I have no recollection of these including the prescribed Terms. The two areas that I question as being in the format of the prescribed terms are information concerning the interest rate in force at the time, and details concerning the method and timing of payments and the amount of those repayments, percentage payment required each month etc. The detail within the interest rate section shown on the version issued in 1999/2000 at pages 3-5 is very precise, I am of the opinion that the reverse of the application form did not contain similar detail, and was silent on this point. Also that the clause giving information on repayments wouldnot have contained the required informationt."

Your opinion based on what you see is not strong evidence. If you get an unfriendly judge it'll never fly.

Since no copy of the original true agreement signed in 1997 has been found on the balance of probabilities as discussed today I would also request that the claim be permanently struck out due to the lack of evidence that the original agreement in 1997 ever contained the prescribed Terms outlined in s127(3)." etc

Come on, you can't ask a judge to make a finding because there is no evidence. You need to say this is what i signed and x,y & z were missing and then invite them to declare under s142. You must positively assert your evidence no make wishy washy guesses.

M1

[bcarterproblems]

Re: Capital 1 Debt Sold on to Lowell Financial

Ok understood. Change all of the above to a single clear sentence: "The agreement I signed in 1997 did not contain the prescribed terms required in respect of amount of credit, interest rates and the method by which repayments were to be made, I therefore ask you to make your ruling under s142."

The single sentence replaces the three points I drafted yesterday and is congruent with the information on the form I signed.