Me -v- Cap1

[flooz]

I have been playing letter tennis with Cap1 for sometime now, and finally, many months after the initial request, have been provided with a copy of what they are saying is a fully enforceable agreement. As I understand, one of the prescribed terms for a credit card agreement is a credit limit - sadly lacking on what has been provided to me.

I've read so many sites and forums about this issue that I'm now more than a little confused. So, what I'll put here is what I would like to do, if it's possible....

I believe that I've read somewhere that if the agreement was not drawn up correctly, then Cap1 didn't really have the right to charge me interest and charges (isn't there a case where the Judge ruled that without a properly executed agreement, all monies could be classed as a 'gift'? - I'd like to be able to refer to that in the letter I am currently trying to write).

So, what I intend to do at this moment, is write back to Cap1, pointing out to them that prescribed terms are missing, and therefore the agreement is unenforceable and probably invalid. Calculate how much interest I have paid according to the information they have provided me with, deduct this amount from the balance, and get them (somehow) to agree to accepting a final payment of the reduced balance. Technically, I guess I'm not actually claiming back charges, just requesting they be offset against the balance. I know it's a long shot, but .....

There are only about £40 #(2 x £20) in penalty charges throughout the term of the card, and no PPI charges at all.

It's possible (they do seem to make many mistakes) that they will write back pointing out something along the lines of the lack of prescribed terms doesn't give me the right to claim back interest, just that the agreement is unenforceable - I can dream can't I?

I have previously had advice from another web-site, but all the experts seem to have disappeared which of course, led me to google for information and lo and behold, I found myself here.

Please be gentle with my, my brain doesn't work as well as it should, and sometimes I need things explaining to me in very simple terms.

Looking forward to receiving responses though.

[WendyB]

Re: Me -v- Cap1

Are Crap One chasing you, are you in arrears, default or whatever? Why do you want it declaring unenforceable?

[flooz]

Re: Me -v- Cap1

Yep to all of that really, I'm in arrears, change of circumstances with no hope of paying it off really. DN issued back in March (although I believe it's not been drawn up correctly, but I haven't looked into that).

I'm a great believer in fighting these large corporates that think they're beyond complying with legislation and believe that until joe public starts fighting back, and hitting them where it hurts, they won't change. Some people will agree with me, and some won't.

One thing is certain is all the time they get away with not doing things correctly, they won't change.

I guess it's a bit like the millionaire that gets a £60 speeding fine..... Hardly a disincentive.

Hope you understand what I mean.

[WendyB]

Re: Me -v- Cap1

Well, it's a sort of a plan. Not sure how far you'll get with it though. If the agreement is unenforceable, then that just means they can't chase you for the debt, not that it will go away. And just because they can't enforce it, doesn't mean they won't try to, and pass it round various DCAs ad infinitum, although they aren't supposed to. Might be worth trying it on with them, and trying to negotiate a refund of interest and a reduced settlement. But if you have no hope of paying the full debt, are you in a position to pay a reduced amount? Another thing to remember is that you could not bring a claim in court based on unenforcability, unenforceability can only be used as a defence. And since the Carey case (sorry I can't find a link but it's on here somewhere) reconstructed agreements can be used etc etc so bear that in mind.

That said, we'll help and advise where we can. Curlyben is the expert on CCA and suchlike, he'll probably post when he catches up with your thread.

[flooz]

Re: Me -v- Cap1

Thanks for your reply Wendy. Cap1 have previously insisted that the agreement was enforceable, but that was before they eventually sent me a 'true' copy of it. It took me 6 months of letter tennis to get them to send it - now I understand why!

They've already had Fredrickson's try and chase, but they quite easily stopped once I pointed out that this account is in dispute and has been for some time.

I know if I declare hardship I can probably get reduced payments, but that just drags the whole process out, and as I understand it, will remain on my credit file for 6 years after the final activity, hence my wanting to sort it as quickly as possible. I need to do the best I can to be able to pass a credit test on finding somewhere to live in the not too distant future. I've got the agreement from a family member to lend me about 50% of the balance, which morally I guess I should do and then pay the balance in instalments. But then I'll have 2 lots of debt to pay, albeit, one on zero interest (family), and still have the 6 years after final activity issue.

I shall carry on trying to find the relevant cases to quote in my letter and hope I hit a nerve....

Looking forward to Curlyben's visit too. :-)

Incidentally, Cap1 have continued adding interest and late payment charges since the account was legitimately put into dispute. Not sure if that's relevant or not.

[flooz]

Re: Me -v- Cap1

I've prepared a letter to send to them, but wonder if someone would be so kind as to have a quick look and make sure I'm not talking complete tosh, lol.

Quote



without prejudice
Account in dispute

Dear Sir
Re:- Account No:


Thank you for eventually sending the information requested.

I now understand Capital One’s reluctance to send a true copy of what is supposed to be a correctly executed credit agreement, indeed procrastinating for over 6 months. As you must realise, without ALL of the prescribed terms within the signature document, the supposed agreement is totally unenforceable, and also therefore Capital One HAVE NOT provided a fully executed enforceable credit agreement, as requested under s77/78.

As you must realise, this agreement is unenforceable at law.

Further, as the agreement was not executed correctly, Capital One were not obliged to levy either interest or charges, both of which have been paid by myself. Using the information provided by Capital One, a total of £2,658.55 has been added to this account in interest and charges, since the start.

Given that you allege the balance on this account is £......, with £2,658.55 of that having accumulated by your UNLAWFUL charges, I suggest that the balance of monies actually owing to you is £.......

Once I have received your written acceptance of the above, the correct balance of £..... will be paid in full and final settlement of the account.

I look forward to your timely response, in order that this situation can be brought to a satisfactory conclusion as quickly as possible.

Yours faithfully

end quote.

[Curlyben]

Re: Me -v- Cap1

Blame Windy for this.

Right I'll have a proper look in the morning, until then do NOWT !!

[WendyB]

Re: Me -v- Cap1

Blame Windy for this.

Right I'll have a proper look in the morning, until then do NOWT !!

He means me lol. Do as CB says , don't do anything till he advises further.

[flooz]

Re: Me -v- Cap1

Good evening curlyben, thank you for responding. I shall hold fast till instructed.


Windy Wendy - I hope you're not going to let him get away with that ;-) lol

[Curlyben]

Re: Me -v- Cap1

Just a couple of things you can do.
Scan and upload a copy of the "agreement" and let us know when the account was opened.

Oh yeah removed personal info first of course.

[flooz]

Re: Me -v- Cap1

No problems, This is the agreement they eventually sent me. Hope it's legible.

[WendyB]

Re: Me -v- Cap1

Windy Wendy - I hope you're not going to let him get away with that ;-) lol

I have learned to ignore him lol, cos he knows I know he only does it to wind me up so therefore it doesn't :tung:, and tbh I've been called far worse

[Curlyben]

Re: Me -v- Cap1

ROFLMAO

Thanks for that needed a laugh to go with my coffee.

Well all in all it's complete:


Having seen a number of these before I'm sure there is NO link between the signature sheet and the alleged T&C's.
No matter anyway as the terms MUST be included within the signature document.

This is a classic Cap1 quick application form and was never sent out with the terms anyway.
Just a simple case of sign and return.

While Carey does indeed allow the OC to produce a reconstituted agreement, if they actual agreement is lacking then they are up pooh creek without a paddle.
Cap1 know this well, otherwise they wouldn't of passed this debt to a DCA so early.
IF the agreement was indeed as enforceable as they claim, then a simple court action would finish this once and for all.


You need to have a read through this thread: ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles Consumer Forum

[flooz]

Re: Me -v- Cap1

Thanks Curlyben - I shall have a read through this evening - I've done so much reading lately, I'm more than a little confused. I'm pretty sure I'm trying to push the boundaries a bit more, but I guess it doesn't hurt to try.

Will post again, once I've read through the thread. :-)

[flooz]

Re: Me -v- Cap1

Hello again :-)

Have read most (have to admit, not all) the relevant thread, and certainly some of the letters are very similar to those I've previously sent to Carp1, resulting in the situation I am in with them now.

I noticed a template there about unreasonable charges, but I thought that was mainly in relation to banking situations - as my 'agreement' quotes the interest rates that prevail, do I still have the right to question them? I was thinking more along the lines of if the agreement's not drawn up correctly, then (I read somewhere) it's as if the agreement never existed.

Similarly, I note what you say about the alleged T&C's. Previously, Carp1 had provided the 'signature' page, but nothing else that related to it, but some T&C's that may or may not have had any relevance - seemingly, just printed off a PC.

Now the document they have provided, has the T&C's on the reverse, but as it's a photocopy, there's no way of my telling whether the original document appears in this manner.

I know I've read somewhere about a case whereby it was judged that without a proper agreement, any monies are regarded as a 'gift' - do you know the case I mean?

Similarly, is it correct or incorrect to refer to the charges being 'unlawful' if the agreement isn't drawn up correctly?

I'd really like to get this matter with Carp1 concluded as quickly as possible, hence my offer to pay the balance after the charges have been deducted - I'm hoping they will see that as a better alternative to not being able to enforce, and thereby risking getting nothing.

Is that reasonable? and if so, have I put it in a reasonable manner in my letter?

Many thanks - I appreciate your time and assistance.