*** WON *** Lowells Claim for Capital One Card

[Amethyst]

Re: Lowells Claim for Capital One Card

Forgot the point there actually - I was reading through trying to find the actual terms on payment and missing payments - can only see the payment due 28+ days after statement date ... can you see anything else re time scale for default etc ?

[charitynjw]

Re: Lowells Claim for Capital One Card

First glance that DN does not have a specific date to remedy.

Imho, definitely non-compliant, nem.

[MIKE770]

Re: Lowells Claim for Capital One Card

So the T&Cs are later as they refer to 0333 also APR 30+ not at inception.

[ADDLED]

Re: Lowells Claim for Capital One Card

So the T&Cs are later as they refer to 0333 also APR 30+ not at inception.

Thanks Mike, so whats the legal ramifications of this? (to the legally uninformed layman)
tks
ADD

[charitynjw]

Re: Lowells Claim for Capital One Card

Hi ADDLED

To get you up to speed on this, you need to refer to s78 CCA 1974.
http://www.legislation.gov.uk/ukpga/1974/39/section/78
Subsection (1)
You should receive a copy of the agreement (for the purposes of a s78 request, a reconstituted one is deemed acceptable as long as it is accurate) plus any any other document referred to in it.
Clearly this will include, but not limited to, the T&C's which were applicable when you signed the agreement.
If these are not sent to you, the request is not compliant.
Subsection (6) kicks in....."the creditor (or owner*) is not entitled, while the default continues, to enforce the agreement."

*My addition - see section 189 of the CCA for a definition of 'creditor'
http://www.legislation.gov.uk/ukpga/1974/39/section/189

[ADDLED]

Re: Lowells Claim for Capital One Card

Thanks charity. Ive read it but, as a layman, I'm not sure how to interpret it.

[charitynjw]

Re: Lowells Claim for Capital One Card

What information should I receive?You will get different information back, depending on which sample letter you use.Consumer Credit Act request under sections 77, 78 and 79You should be sent a ‘true copy’ of your agreement that is easy to read and a statement of your account signed by yourcreditor. The ‘true copy’ must contain all the terms and conditions from your original agreement, information about anychanges made to the agreement and your name and address at the time that you took out the agreement. It does nothave to include a signature box, signature or the date of signature from your original agreement.The statement of account should be signed by the creditor and tell you:
how much you have paid (if you borrowed a fixed amount);how much you still owe; andwhat you still have to pay and when.

What if I do not get what I asked for?You have rights to the information that you ask for under these acts and there can be consequences for the creditor, ororganisation, if they do not reply properly.If the creditor does not reply to your Consumer Credit Act request undersections 77, 78 and 79If the creditor does not send you a copy of your agreement and a statement of account within 12 working days, thenthey are not allowed to take further action against you to enforce the agreement in the court until they do so.In the meantime, the creditor cannot:make you pay off your debt before you’re supposed to;get a court judgment against you; ortake back anything you've hired or bought on credit, or takeanything you used as security (like your house) when youtook out the agreement.However, they can still:ask you to pay what you owe;send you a letter called a ‘default notice’ if you miss anypayments;pass your information on to a credit reference agency (whichmight affect your credit record);pass your information on to a debt collector;sell your debt to someone else; ortake your case to court, although they won’t be able to get a court judgment against you unless they give you theinformation you’re entitled to.

https://www.nationaldebtline.org/EW/...rcreditors.pdf

[Amethyst]

Re: Lowells Claim for Capital One Card

Morning Addled, I have received your docs xxx I'll be back with you a bit later on today

[Amethyst]

Re: Lowells Claim for Capital One Card

For Ref

Exhibit AK3 (the recon terms) are defined in the witness statement as the terms provided at the outset.
( Witness statement actually says " Representative, detailed terms and conditions supplied to the Defendant at the outset are also enclosed ("AK3")" - there's no reference to terms as varied.

They aren't ( for the reasons we have already been through ) therefore the credit agreement is unenforceable ( as it stands) as it is incomplete and does not contain the prescribed terms.

So you need to argue 127(3) as you did not have those terms at the date of signing the agreement. There's no balance of probs that those terms exhibited would have been provided at the time as they weren't in existence at the time you signed your agreement. However there could be a balance of probs argument that similar terms would have been provided in 2002 which needs arguing against.

[Amethyst]

Re: Lowells Claim for Capital One Card

It would assist if you put in a skeleton argument before the hearing if you don't feel confident just arguing on the day, although the terms quite clearly are not those from inception as pleaded by the claimant. Even if you don't submit you can take it with you so you have your arguments to hand. Probably a simple list of why the agreement is incorrect, and then you need to explain why it being incorrect means the claimant can't enforce the debt ( it would be a case of arguing that you didn't have any additional terms at the time of signing the agreement and that may be why they have provided later terms - and that that would make the agreement improperly executed under s.61 CCA 1974 and thus unenforceable - or that if there were terms at inception ( which you deny) the claimant has failed to provide them thus remaining non complaint under s.78 CCA 1974 and thus the agreement is unenforceable ). As the agreement is pre 2007 you could argue that as the original inception agreement did not have all the prescribed terms it could be deemed irredeemably unenforceable pursuant to s 127(3) which although now removed was not removed retrospectively. If they argue they aren't the creditor then refer to s.189 as noted by Charity earlier.

The 'terms' part of the agreement clearly states right at the top they are terms taken from another document ( which you don't have) and refers to other clauses which you also don't have.

[ADDLED]

Re: Lowells Claim for Capital One Card

Hi Amethyst, I'm having a stab at it now, should be done in about 15mins then i'll post it up.
tks
ADD

[ADDLED]

Re: Lowells Claim for Capital One Card

Hi, Ive amended my original Witness Statement as follows;

1. I received the claim on 22^nd April 2016 from the Northampton County Court Business Centre.
2. The Claimant’s claim form fails to adequately set out the nature of the Claim. The Claimant states the claim relates to a regulated agreement with Capital One.
3. I believe this to be a credit card account however I do not have any record of the account reference number given.
4. I Acknowledged receipt of the claim via the Moneyclaim Online service on 3^rd May 2016.
5. In order to find out more information to enable me to assess my position, on 4th May 2016 I wrote to the Claimant and the Claimant’s legal representative requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14 (EXHIBIT A) These documents being the agreement, default notice and notice of assignment.
6. Additionally, on 4th May 2016, I sent a formal written request to the Claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974 (EXHIBIT B).
7. On or after 29^th September 2016 I received a bundle of documents from the Claimant.
8. The Claimant’s Witness Statement makes reference to Exhibit AK2, a copy of an agreement which the Claimant states is signed by myself, the Defendant. Thesignature on this document bears no likeness to my signature whatsoever. I enclose my drivers licence and passport as proof of signature. (EXHIBIT D)
9. Page 2 of the Claimant’s Exhibit AK2 contains the sentence “These terms are taken from clauses 8,10 and 23 of the Terms and Conditions that you sign with us”. Claimant’s Exhibit AK3 is provided by the Claimant as a copy of the detailed terms and conditions that should have been provided at the outset. On pages 5 and 8 of this document there is mention of telephone numbers beginning with the digits ‘0330’ and ‘0344’. Telephone numbers with this sequence were introduced in March 2007 and therefore it is impossible that these terms and conditions were provided at the outset in 2002. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.
10. The Claimant’s Exhibit AK5 is a Default Notice dated 8 June 2014. This document does not show a specific date for the Defendant to remedy. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

[ADDLED]

Re: Lowells Claim for Capital One Card

Okay, I have an update. Had a hearing today, attended by a bloke from Lowells.
At first the judge advised that I didn't have a defence, so I argued that the T&Cs provided were dated later, due to the phone numbers, and so proves they weren't provided at the outset.
Lowells tried arguing that the 2 page credit agreement should stand, but judge wasn't happy with that and agreed that the terms were incomplete.

Considering they've had 3 opportunities (twice ordered by the Court) to provide the docs I was expecting the claim to be struck out, but the judge has decided to adjourn and given them 28 days to come up with the original T&Cs. I tried to argue that they had received 6 months already and had failed to comply with my requests and 2 previous court orders but the judge stated firmly that he is not going to strike out the claim.
So, its not all bad news, I just have to wait another month.

Thank you again to everyone who has helped me out on this.
tks
ADD

[Amethyst]

Re: Lowells Claim for Capital One Card

Okay, I have an update. Had a hearing today, attended by a bloke from Lowells.
At first the judge advised that I didn't have a defence, so I argued that the T&Cs provided were dated later, due to the phone numbers, and so proves they weren't provided at the outset.
Lowells tried arguing that the 2 page credit agreement should stand, but judge wasn't happy with that and agreed that the terms were incomplete.

Considering they've had 3 opportunities (twice ordered by the Court) to provide the docs I was expecting the claim to be struck out, but the judge has decided to adjourn and given them 28 days to come up with the original T&Cs. I tried to argue that they had received 6 months already and had failed to comply with my requests and 2 previous court orders but the judge stated firmly that he is not going to strike out the claim.
So, its not all bad news, I just have to wait another month.

Thank you again to everyone who has helped me out on this.
tks
ADD

Well done for arguing your case. Shame the Judge is giving them even more time. It annoys me how they do that far more with Litigants in Person than if there was a solicitor representing. 6 months and two orders should have drawn a sanction from the Judge. Did he mention any sanction for if they don't comply within the further 28 days ?

[ADDLED]

Re: Lowells Claim for Capital One Card

Thanks Amethyst, I was a bit miffed to be honest.
Another thing is that the judge asked me what my defence would be should Lowells turn up a signed agreement in the next 28 days. I wasnt expecting to provide a defence on the spot so I mentioned the different signatures and he said that a condition of the order would be that, if the agreement can be produced, I would have to pay for a handwriting expert to give an opinion on the signatures.

Onwards and upwards!