Capital One

[McGinty]

Re: Capital One

Hi Amethyst

This is what they supplied under the s78 so I think they are claiming they are but surely for them to get it into court they would need the original. As far as I can see this is just a copy of an application form with some t&c's thrown in? If they haven't complied with the s78 I just need to know how to respond please? Mc

[Amethyst]

Re: Capital One

Application Forms are Credit Agreements. I was just trying to work out if this http://www.legalbeagles.info/forums/...3&d=1424018691 is meant to go with the application as original OR if its meant to be the current/latest terms ?

Point being IF if is meant to be the original terms that were on the back of the application form - then you have an argument as it is then meant to be 2003 but has £12 charges on.

[FlamingParrot]

Re: Capital One

Hi Amethyst

This is what they supplied under the s78 so I think they are claiming they are but surely for them to get it into court they would need the original. As far as I can see this is just a copy of an application form with some t&c's thrown in? If they haven't complied with the s78 I just need to know how to respond please? Mc

Not necessarily, a reconstituted copy is acceptable after the Carey judgment, however, the recon should be honest and accurate. The terms supplied with your application form should be the ones from inception, i.e. the original terms you'd have agreed to when you took out the card, not just random T&Cs.

RBS did that to me, they sent the front of the application form with nothing on the back, then when I sent the account in dispute letter, they responded with random terms. This was back in 2010, I sent a few dispute letters to the DCAs they unleashed until they finally left me in peace, over 3 years ago. :tinysmile_kiss_t4:

[McGinty]

Re: Capital One

1234

[McGinty]

Re: Capital One

I think we need to bring some clarity to this thread. I sent a S78 and Cap1 sent the all the bumph that is posted earlier on here. The question is; does it comply with the S78? Can anyone say yes or no on this for sure?

Even if it does comply then there is the issue of enforceability through the courts. It is my understanding that because this card had been taken out prior to 6th April 2007 CAP 1 would need to produce the original agreement just to get it into court. For cards taken out after this date they would only need a reconstituted agreement to enforce via court.
I fought Barclaycard for 2 years on the same issue and goaded them into taking me to court to enforce but they did not. I did send Barclays a SARS request and there was no agreement in the information received save from a computer print off of the application. Surely they would have enforced the debt which was for over £6k if they had the required tool? Mc

[FlamingParrot]

Re: Capital One

I think we need to bring some clarity to this thread. I sent a S78 and Cap1 sent the all the bumph that is posted earlier on here. The question is; does it comply with the S78? Can anyone say yes or no on this for sure?

See below, it's up to the court.

Even if it does comply then there is the issue of enforceability through the courts. It is my understanding that because this card had been taken out prior to 6th April 2007 CAP 1 would need to produce the original agreement just to get it into court. For cards taken out after this date they would only need a reconstituted agreement to enforce via court.

This isn't exactly right. There are two separate issues here involving two sections of the Consumer Credit Act:

• s.127 prevents the court from enforcing an account unless there was a properly executed agreement containing all the prescribed terms to start with, that is, at the time you took out the card, you should have signed such an agreement. In many cases, people just filled out short application forms and the terms were sent out later, usually with the card, or some of the terms were missing, etc., these accounts would be unenforceable for that reason, however, s.127 was repealed with effect from April 2007 so it only applies to accounts opened before that date, in other words, the court has discretion to enforce an account opened after that date even if there were missing terms, etc.
• s.78 (for credit cards) refers to the duty to supply information to the debtor, including a copy of their credit agreement. This applies to ANY account regardless of date (although there are some exceptions involving pre-1985 accounts). In Carey v HSBC it was established that a reconstituted copy of your agreement was acceptable as a response to a request under s.77/79, regardless of when the account was opened. In fact, I believe the accounts involved in the case would have been pre-April 2007.

An account can be unenforceable under either or both sections:

• Under s.127 it would be irredeemably UE, there's nothing the creditor could do to remedy the situation since it's not possible to go back in time and make you sign a properly executed agreement. :grin:
• Under s.77/79 the breach can be remedied by supplying you with a copy of your agreement or an acceptable recon.

It's up to the court to decide whether a response complies with s.78 or not as per this paragraph from Carey v HSBC:

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

On the other hand, in Santander v Mayhew the judge ruled that s.78 had been complied with, i.e. the defendant 'lost' that point:

In my judgment the Claimant complied with the section 78 request within the stipulated time and is not prevented from enforcing this debt for non-compliance with a section 78 request.

However, judgment was still in favour of the defendant:

It follows from what I have said above that the claim is dismissed. The claimant must pay the Defendant's costs to be subject to detailed assessment if not agreed

The judge said that she believed the T&Cs had not been supplied to the defendant to start with, even when she also ruled that s.78 had been complied with:

I believed her evidence that she had not received any terms and conditions, either when she took the application form or when she received the card. I therefore find that the April 2000 agreement is unenforceable.

I hope the above references and cases illustrate the difference between the two points. :thumb:

I fought Barclaycard for 2 years on the same issue and goaded them into taking me to court to enforce but they did not. I did send Barclays a SARS request and there was no agreement in the information received save from a computer print off of the application. Surely they would have enforced the debt which was for over £6k if they had the required tool? Mc

Barclays lost a lot of agreements. There are, of course, limits with regards to what a court could say satisfies s.78 and what constitutes an acceptable recon of an agreement.

[McGinty]

Re: Capital One

Thanks FP. In my case it appears there are separate t&c's relating to £12 charges which did not apply at the time of taking the card out. Do you think it would be worth sending a SARS to them? Mc

[FlamingParrot]

Re: Capital One

Thanks FP. In my case it appears there are separate t&c's relating to £12 charges which did not apply at the time of taking the card out. Do you think it would be worth sending a SARS to them? Mc

I could be useful to have the statements, yes, so you can compare what you were actually charged vs the terms. :thumb:
SAR letter: http://www.legalbeagles.info/forums/...765#post382765

[McGinty]

Re: Capital One

I received the SARS paperwork yesterday and on checking the charges applied, there were none prior to 8/12/2010 as I used to pay dd. From that date there are two kinds of charges applied on a monthly basis at £12 each-one was and over limit charge and the other late or failure to pay charge. The total on these are £120. I used the debt management company from 8/06/2011. I have posted the response below. The 'Agreement' and T&C'S are the same as posted earlier. I really want to know the best way forward with this. Is this agreement enforceable?
There was a default notice issued on 12/ 04/2011. The default was registered on the 30/11/2014 so they are out of order there.

Going back to the agreement there are no t&c's supplied within the SARS docs unlike when I asked them to supply a copy of the original agreement whereby the sent a set of 'terms'. The 'agreement' itself is an application form and it says on the bottom right 'IF' my application is accepted. Also there seems to be a forged signature of mine in the box on the left side bottom where it says authorised signature of Capital One. Any thoughts on this please? Mc

By the way Cap One has appointed Fredrickson International as collectors on this now.

[nemesis45]

Re: Capital One

Hi,
The date the default was registered with CRA files I think is of little value, given time to remedy it is probably very close the recommended 6 months.

There is no obligation to send T's & C's with a SAR these are generic in nature i.e. Not Personal Data.
Please post a redacted copy of the Agreement/Application form here.

nem

[McGinty]

Re: Capital One

The defaulty notice was issued 2011-the registered date on credit files is 2014-that is 3 years apart?
The application form was posted earlier in the thread but here it is. I have left the signatures intact as it is difficult to make mine out anyway! -thanks for your help FP.

[nemesis45]

Re: Capital One

After you received the default notice in 2011 did you make any further payments, e.g. enter in to an arrangement to pay?

Getting a default notice does Not mean a default has been placed if an attempt to remedy the default was made and accepted then no default would be registered.

I see now that the case is as I have stated above a " debt management plan" was agreed so no default was registered ( although imo it should have been), when the DMP finally failed the default was placed and registered with the CRA's.

I think you should complain to Capone stating that is was unfair not to register the default at the start of the DMP and require them to back date it.

nem

[remington]

Re: Capital One

Mc Ginty I have just lost my set aside in Court and I have the same application form has yourself Judge said above my signature do not sign if you do not want to bound by the consumer credit act of 1974 was enough for her to say this was a Agreement even though I did point out that yes even though it said that above where I signed we had to look closer at the act as this agreement was never executed properly I gave her a assertion that I received through a sunday magazine etc etc etc did,nt make any difference to her I felt has though I was completely robbed and not heard she did,nt want to know Good Luck. I have also been asking for three days on my own thread for advice still waiting for reply

[McGinty]

Re: Capital One

Thanks NEM-what do you think of my signature being in BOTH boxes at the bottom of the Application form? Surely when you apply for a credit card (back then in 2003) an aplication form as this was used but a fuller copy carrying all the terms etc would be sent out for a signature to make it legally binding? The form does not show an APR nor a credit limit. Really in your opinion is this enforceable?

[McGinty]

Re: Capital One

Sorry to hear Remington. All is not lost. Keep an eye on my thread and see how it pans out. The guys who give the advice are doing so in their free time so I think we have to bear that in mind. If you are really struggling send one a PM as this will normally get things rolling again for you.