Capital One CCA

[lee1972]

Hi all
I have received my CCA from capital one.
I have a few questions
It is dated dec 2005 and so far as I can see contains all the correct prescribed terms.
Two things concern me though, bear in mind there is no credit limit showing (I know that is ok)
It gives a total charge for credit of £425 which would be right for my current credit limit but it says on the back that they use either the credit limit or £1500 so it would be wrong for that. I do not know what my credit limit was at the start
It says it is an original and not a recon
I thought the cost of credit didn't come into it until 2010
Also the statement only shows the amount due, it defaulted in 2008 and I have not had a statement since

Although I do not dispute the debt and will pay it off, do any of these make it UE so that I could have some negotiating power with Cap One

[labman]

Re: Capital One CCA

Hi, I followed your link here from your Hello post. Could you post up the agreement, with ALL personal details removed please so we can have a look at it. You are obviously aware of the issue of prescribed terms, and I suspect the relevance of April 2007. That is why it's best if we can have a look at it.

[lee1972]

Re: Capital One CCA

Cap_1_CCA_(1).pdf
here is what they sent me. They also sent me the T&C's as of the date of default

[lee1972]

Re: Capital One CCA

Anyone?

[Guest]

Re: Capital One CCA

HI

Its totally enforceable i am affraid. The calculation of the TCC can either be made on the assumption or the acctual total credit.
This is not a prescribed term anyway so would not render the agreement unenforceabe if it were wrong or even missing.

Peter

[lee1972]

Re: Capital One CCA

That is exactly part of my point.
CCA's have to say if they rae copies, recons etc and in this case they say it is a genuine copy
CCa's have to provide a statement
I agree that the TCC can be on either but the need to show it wasn't there in 2005 so is it a copy or a recon

What I am really asking is are they in default of a CCA request by a) providing a recon as opposed to the declared accurate copy and b) not providing a statement

[labman]

Re: Capital One CCA

Hi Lee,

Sorry, I asked you to post it up, then totally missed the thread when you did!

I agree with Peter, BUT, and I'd want to look further into this, they state that after signing you have a short period in which you can cancel and you'd be sent details of that.

I thought, but without checking I may well be wrong, the right to cancel had to be specific. It would make sense, as if you had 14 days in which to cancel and they sent the letter out 2-4 days after signing, it dramatically reduces your statutory rights.

Just a thought. I'll dig out the regulations later if nobody has replied in the meantime (Peter?????) and see what they say.

[Guest]

Re: Capital One CCA

That is exactly part of my point.
CCA's have to say if they rae copies, recons etc and in this case they say it is a genuine copy
CCa's have to provide a statement
I agree that the TCC can be on either but the need to show it wasn't there in 2005 so is it a copy or a recon

What I am really asking is are they in default of a CCA request by a) providing a recon as opposed to the declared accurate copy and b) not providing a statement

THey can comply with section 78 by providing a recon as long as the terms are the same as they were when the agreement ws made.
THe new agreement regulations came into force in may 2005 so strictly speakinfg they would have been supposed to show the TCC however even if they hadnt it would make no diff to the enforceability.

Going for unenforceability under section 78 is a waste of time, what you really need to know is if they have a signed document they can show in court.

[Guest]

Re: Capital One CCA

Hi Labman

No they can say that you have a rignt to cancell on the section 62 copy, the details of cancellation period should be sent with the 63 copy(the one that arrives with the credit card).

In fact they do not need to supply any cancellation period on this kind of account, it is a voluntarry practice only, and does not trigger unenforceablitiy under 127(4) as the compulsarry variety that applies to agreements made with pre contractural face to face contact with the creditor.

Peter

[teaboy2]

Re: Capital One CCA

Hi Peter

What regulation or legislation says they do not need to provide terms for cancellation period on this type of account? As way i see it, under distance selling regulations they do need to too.

Not only that the credit act itself supports the right to cancel under the cooling of period of 14 days section 66A

[lee1972]

Re: Capital One CCA

Actually I have read that the canceable agreement bit is only valid IF there is face to face contact prior and it is signed away from the business premises. However most companies put in the right to cancel as a coverall in case there has been face to face contact.

There is however legislation that says either a recon or original is acceptable PROVIDING that it is explained which is provided.
Peter you still haven't said what your opinion is on the alledged "statement".
If that is not a statement then technically the company is in breach of a cca request and as such can not enforce the agreement UNTIL it is rectified

[teaboy2]

Re: Capital One CCA

No thats wrong, any agreement regulated under the consumer credit act 1974 is cancellable section 68 as shown below would apply to you if you were present at signing but did not receive a copy at the time of signing - Even if you signed in person and a copy was given you there and then, you still have 5 days minimum cooling off period where you have the right to cancel - If not given to you there and then, then they must provide you with a copy within 7 days where by you still have a minimum 5 days to cancel upon receipt of the copy or if section 68 (B) applies you have 14 days to cancel.

68 Cooling-off period.

The debtor or hirer may serve notice of cancellation of a cancellable agreement between his signing of the unexecuted agreement and—

(a)the end of the fifth day following the day on which he received a copy under section 63(2) or a notice under section 64(1)(b), or

(b)if (by virtue of regulations made under section 64(4)) section 64(1)(b) does not apply, the end of the fourteenth day following the day on which he signed the unexecuted agreement.

Also section 64 the credit has a duty to give Notice of Cancellation rights to the debtor - There is no such term in your agreement reagrding your cancellation rights and section 66A (14) outlines which agreements are excluded and your agreement does not fall under those that are excluded under section 66A (14)


For the record - There are some changes to the legislation that have yet to be made to the legislation for the above sections given. So it could well be 14 days cooling off period which i believe is what the OFT recommend and why most give 14 day cooling off periods. But don't quote me on that as i going off the top of my head here and haven't actually double checked it.

[labman]

Re: Capital One CCA

I think this is the next sort of step you may wish to take:

Dear Sir/Madam,

Your Ref: xxxxxxx

This is a formal request under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008.

I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources.

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt.

Please also note that failure to provide a direct answer to this request will be brought before the court, should you decide to defy the content of this letter and instruct solicitors to pursue enforcement action regardless.

Yours faithfully,

[lee1972]

Re: Capital One CCA

Thanks Labman
If you read the letter from Cap1 it says it is a scanned copy of the original. So if i understand you, you are saying ask using CPUTR and if they do not hold an original then they lied on the CCA request which therefore makes it invalid (although not UE if they put it right)
Still waiting on thoughts about the statement.

Teaboy , I am alas quite confident that this is not a legally canceable agreement n(as defined)

[teaboy2]

Re: Capital One CCA

Lee all agreements are cancellable. Even if signed in person, you still would have a minimum of 5 days from day of signing (or day in which you receive a copy of the signed agreement) to cancel, thats what section 68 (a) is saying. Your agreement is not excluded from the right to cancel as it does not fall under the type of agreements excluded under section 66 (14) as one your credit limited was not more £60K and its is not connected to purchase of land etc. The creditor has a duty to state what your rights are reference cancellation on your agreement and they failed to do so.