Piesky V Cap One

[piesky]

Hello all. I mentioned to Curlyben earlier this evening that I now have a CCA back from Cap One. This could relate to anyone as it is not personal to me in any way.

The document sent is exactly the same as womble28's document he has posted up in PDF format.

What would be the best course of action here. The rate of APR shown in the CCA sent is certainly not the same as shown on some of my earlier statements going back to 1998

Thanks

Piesky

[piesky]

Re: Piesky V Cap One

I have responded with the following letter :

Formal Complaint/Letter before Action

Dear Sir/Madam,

Thank you for your recent letter, the contents of which are noted. However, your reply does not fulfil the requirements under the Consumer Credit Act 1974
As you are clearly unaware the supplied documentation in no way complies with the Consumer Credit Act 1974 (CCA) insofar as it is completely lacking any of the prescribed terms required for a credit agreement. The prescribed terms specified in Schedule 6 of Consumer Credit (Agreements) Regulations 1983 SI 1553 are as follows:
credit limit
repayments
rate(s) of interest

There is no mention of any of these terms in the Capital One Application form and, as such, this document has no validity in law as a regulated credit agreement.As such, this is a clear breach of s61(1) of CCA:[

61(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement, other than implied terms, and the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
Furthermore this document is totally unenforceable in a court of law as laid out in CCA s127(3):
127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed term of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

To quote the Judge in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

33 In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

Also in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:

26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to Art 1 of the First Protocol, that, where there was no document signed by the debtor - or where the document signed by the debtor did not contain all the prescribed terms of the agreement - neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s127(3) of the 1974 Act. In effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms - must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by Art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.
So, in summary, the lack of prescribed terms renders this agreement unenforceable and the monies a gift that was never intended to be repaid.

I would point out that the sums you have received from myself in respect of this ‘debt’ were paid under this clear Mistake in Law. Payments were made in the belief that the contract was valid, enforceable and compliant with the requirements of the Consumer Credit Act 1974 and subsequent Statutory Instruments.
The recent judgement in Sempra Metals v Inland Revenue, show that Restitution and compensation at contractual rates are available at common law for money paid in mistake. As such, there are clear grounds for making a claim for Restitution in this case, and I am certain that a Judge would look at your actions in this case in a very unfavourable light considering your continued unlawful pursuit of this matter.

Swift resolution of this matter without the need for court action would be preferred but, for the avoidance of doubt, any legal action instituted by you will be vigorously defended and I will make a counterclaim against Capital One for repayments of monies paid plus interest calculated at your current contractual rate, as well as damages at the Courts discretion. This is the level at which a court would award payment in this case.

I now have the option of reporting you to the Office of Fair Trading and Trading Standards in relation to these matters. I also have the option to request sight of all information you hold or have ever held on me including, but not limited to, a fully regulated and executed agreement and a list of all charges levied. This would be requested under a Subject Access Request. However, prior to doing this, I am giving you the opportunity to suggest an acceptable conclusion to us both in this matter. Please be advised that if you follow up to this letter with further threats I will not hesitate to take matters further and as suggested and without further notification, I will also make an official complaint to Dyfed Powys Police force under the Protection for Harassment Act 1997, Administration of Justice Act 1970 and Fraud Act 2006.

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this rather than merely respond with standard letters and leaflets.
I would appreciate your due diligence in this matter and await your rapid response.

Yours faithfully,

They have responded to this with a letter today stating the following:


Thank you for your letter. I have already explained, in accordance with section 78 of the consumer credit act of 1974 and the consumer credit (cancellation notices and copy documents) regulations 1983, we've provided you with a copy of your original agreement,and if any terms have been varied, then the copy agreement will include the updated terms. In addition, your personal details, the signature box, signature and date of signature were omitted from the copy provided as permitted under regulation 3 of the consumer credit (cancellation notices and copy documents)regulations 1983.


I can confirm to you that your credit agreement complies with the consumer credit act 1974 and is in the correct format.


You clearly have a valid and enforcable credit agreement with capital one as evidenced by the documents sent to you and any claim to the contrary will be strongly defended.


I must politely refer you to the key financial information section on the terms and conditions provided to you. You will see these specifically provide details of the credit limit, monthly payments and interest rates set out as required by the prescribed terms.


Your account status remains defaulted. We will continue to pusue the outstanding debt and do not consider the account to be in dispute, therefore we would remind you that you are bound by the terms and conditions of your credit agreement and are obliged to maintain payments and repay your outstanding balance.. If proceedings were commenced by you on the basis that there is no enforcable agreement between us, we would strongly defend this.


As mentioned in my previous letter, you now have the option of contacting the financial ombudsman. As we have already sent our final response, I need to let you know that we won't be able to send any different documentation to support your request.


I must now inform you that any further contact we receive from you will be acknowledged but we will not enter into any further correspondence.


Yours


Ellie Renshaw

Executive Office Manager

[piesky]

Re: Piesky V Cap One

Here is my CCA from Cap One (Very Personal to me and according to them is an executed agreement)

[Curlyben]

Re: Piesky V Cap One

Yep, that's the compliant agreement that they SHOULD of sent you, but of course forgot

Seems Cap1 are trying to pull their normal fast one here.
While the mention of SI 1983/1557 is correct, it's totally pointless.
They CANNOT take any enforcement action based on that document at all.
There's a requirement to produce the actual executed agreement in court.

I bet their next move will be to sell it to Lowell's..

[piesky]

Re: Piesky V Cap One

Sorry CB, did you say this agreement is compliant and enforceable? They have, by the way, now passed this over to Debitas who are telephoning 4 or 5 times per day.

[Curlyben]

Re: Piesky V Cap One

That paperwork is compliant, BUT as it is NOT your agreement they are on to a looser.
Debitass are simply their in house monkeys.
Just tell them that you are recording the call, to stop and that you require EVERYTHING in writing for the avoidance of doubt.

[piesky]

Re: Piesky V Cap One

Do I need to send another response to Cap One?

[Birdie]

Re: Piesky V Cap One

Piesky

The letter that you received from Ellie Renshaw looks very similar to one that I received, only no doubt she just changed the address to yours!

[piesky]

Re: Piesky V Cap One

Yeah, everything from them is in standard letter format.

Piesky

[piesky]

Re: Piesky V Cap One

Hi Curlyben,

I have put this letter together. Would you recommend sending it to Cap One?

Piesky.

Account In Serious Dispute - Ref: ????????????

Formal Complaint


Dear Ms Renshaw,


Thank you for your recent letter, the contents of which are noted.

With regard to your reply to my request under section 77-79 of the Consumer Credit Act 1974, I note that you have replied by sending a blank copy of a current application form and your company’s current Terms and conditions. I must inform you that this is not sufficient to comply with the original CCA request and that your company remains in default under the act.

To clarify, just sending the current 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 original agreement, with the original terms and conditions, in its prescribed form, all within the four corners of the document.

This breach of the CCA request 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 case in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that must be considered 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.

This quite clearly states that whilst certain items may be omitted from the copy document the remainder of the document must be in the correct form and contain all terms as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies, these are contained in 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 cancellable 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 be presented in the correct 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 and await a True copy of the alleged agreement. I would remind you again that whilst the request has not been complied with the default continues.

Yours Sincerely

[Curlyben]

Re: Piesky V Cap One

You need to reread that as there's some errors, especially concerning separate T&C's.
You must understand what you are saying, rather than copying from other letters that don't have any relevance.

While they are almost correct in their assumption in the removal of your personal information, what they have sent ISN'T executed. They may omit the signature, but not your personal details.

I draw you attention to the highlighted part

(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;

Now as the signature IS required within s61 to form a compliant agreement, it IS a requirement that this is included to be considered a True Copy.

[piesky]

Re: Piesky V Cap One

Hi Curlyben. Really appreciate your help and advice. Could you help me to re draft the letter so that it says exactly what is needed and is correct in all aspects of the act?

[piesky]

Re: Piesky V Cap One

I just cannot understand how a company such as this can send a document that contains no information about me whatsoever and then claim this is my original credit agreement which is fully enforceable. I really don't know enough about this but having asked for my CA on numerous occasions, if they decide to take this into court, can they then, at that stage, produce an agreement with all my details and which has been signed by me?

I agree, I don't wish to look foolish by quoting incorrect information, and yes, I have copied and pasted from other documents, but I do want to tell them not to try and pull the wool over my eyes. Hence, I value your advice, opinions and experience in this area CB.

Piesky

[Curlyben]

Re: Piesky V Cap One

The piece you really need is at the bottom of #3 ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles

Also remind them that your lawful request under s78(1) is still outstanding

[piesky]

Re: Piesky V Cap One

Thanks Curlyben, I'll have another read through that and send them a further reminder.