Capital One

[McGinty]

Hi there, I wonder if any of you can help me on this please. I took a Cap One credit card out on 13th March 2003. I fell behind with payments along the way and went to a debt management company late in 2010 to help me. He had been managing my accounts until recently when he retired. I am try to sort my own affairs out now. I have sent a s78 request to Cap One and received the reply which is attached. The copy of the credit agreement supplied does not appear to me to be a copy of an 'ACTUAL' credit agreement but I can be corrected on this. It is a copy of an application form. For some reason my signature is in both boxes-(in the Cap One authorisation box also). There is no terms etc on the back of it and it came with a separate set of terms and conditions which may or may not have applied at that particular time. The account was defaulted on the 15thMay 2011. The sums owed increased also from £1879.77 to £2180 -(now £2104.03) with interest and charges applied. I had a £1700 credit limit. I do not have a copy of the default notice. Would it be worth sending a SARS request to them to see what they have? Does the documentation they have supplied comply with a S78 request?
Thanks Mc

[nemesis45]

Re: Capital One

H,i What you have received is as they say a "reconstituted" copy of the agreement, to satisfy the CCA request it must have the following elements:
1. Your name and address as at the inception of the agreement.
2.The Creditors Name & address as at inception.
3. The T's & C's at the inception of the agreement.
4. The T's & C's at closure of the agreement.
5. Any document mentioned in the T's & C's.
6. Any material amendments made to the T's & C's during the life of the agreement.

To me it seems incomplete not all of the T's & C's appear to be there.

Certainly worth a SAR I think.

nem

[McGinty]

Re: Capital One

The T&C's were sent also but as these could be from any period I didn't post them. It says in the letter from them that a reconstituted copy is sufficient to satisfy a S78. As far as I am aware all cards taken out prior to April 6th 2007 (this card was taken out 2003) the creditor would need to have the ACTUAL agreement to enforce it in court. This is why I posted it on here as I did not think it was a copy of the 'Original"?

[nemesis45]

Re: Capital One

A recon can satisfy a CCA Request, but will not necessarily satisfy a judge that is enforceable.
The original ( a proper copy) is needed for the court.

nem

[McGinty]

Re: Capital One

What do you think of the one posted-copy of original or not? I doubt that it is.

[McGinty]

Re: Capital One

Actually, just had a read of the small print on the bottom right and it says on there 'if my application is accepted' so this is definitely not a copy of the original signed credit agreement. They have tried to blag the way through on the letter also -please have a look at the bottom paragraph on page one. I definitely think a SAR is the best way forward to flush
them out-what do you think?
I have had a very similar situation with City a few year ago and they have now given up the chase. My Barclaycard post on here is also is very similar-they haven't chased now in 4 year.

[remington]

Re: Capital One

Hi McGinty I am going through same as yourself I have a form from Cabot a Capital One original lender a form 3623 Application Certificate with all the important bits missing of it even less information than yours which they say is enforceable

[McGinty]

Re: Capital One

Hi Remington-as far as I am aware they can chase the debt but need the original credit agreement to be able to get it into court. This only applies of course to cards taken out before 6th April 2007-after this date it is a lot easier for them to get you to court. I have had a similar situation with Barclaycard since 2008. I have had dozens of letters from them threatening to take me to court but as they have not got the original agreement they cannot do so. They defaulted the agreement 2010 which is another fight I have with them now and it is on here.
I was just going to ask nemesis45 to have another look at mine before responding to them. I am 99.99% sure it is just the original application form-not a copy of the Original credit agreement, just need reassuring from someone who knows more than me on this.

[nemesis45]

Re: Capital One

Hello McGinty Responding to your PM.

What is it you want me to look at?

nem

[McGinty]

Re: Capital One

Can you have a look at the supposed copy of the credit agreement that I received and have posted on here please-just to be sure,I think this is a copy of an application-not the agreement. Would you agree they could not enforce this debt through the courts without the original agreement as this card was taken out prior to 6th April 2007?
I am going to respond to them but need to be sure of my facts before I do. Thanks a lot for your help. Mc

[sunshine111]

Re: Capital One

Hi McGinty

if you check your third page - 'application form' the section at the very bottom where the signature is states 'Agreement' - it looks like they have incorporated the application and agreement on one form:tinysmile_cry_t:

is that right?


i was taken to court on a pre 2007 recon agreement. the judge i had was not interested in the fact that it was not a signed original. He accepted that the recon and terms were copies of what would have been the T&C's at the time. i never kept a copy of my original agreement/T&Cs as comparison so could not really dispute the docs they came up with. the judge was actually trying to be fair and look for ways around avoiding making an order in the banks favour. the judge actually said at one point-'you are not actually giving me the tools i need to help you' a disadvantage of a LIP i guess.

my point. it depends on the judge and their mood on the day. there doesn't seem to be much consistency. I've read on here that recently a forum member lost a stat barred case, unbelievable!! the case should have been thrown out - inconsistency.

i do wish you all the very best for your case though.

[McGinty]

Re: Capital One

Well, as far as I am aware they NEED the original if the card was taken out prior to 6th April 2007 otherwise they cannot prove the debt. This would be a necessity to take court action. After this date the Judge will accept a recon copy of it. I can be corrected on that but I am pretty sure I am right. I would appreciate some input from them that know more than I here. I think you have been hard done by and I think the Judge was saying as much when he passed that comment. I have another thread running on here with Barclaycard and it is 4 years since they chased the debt as it is exactly the same situation as this one. They know they need the original which is why they have not taken court action. I also had a CITI card with where they did not have the original agreement and they also stopped chasing four years ago. The CITI card is not even on any of my credit files! These cards were taken prior to the date above.
This information I was given on the old Penalty Charges Forum. Mc

[remington]

Re: Capital One

this all seems to be a very grey area I am reading that they need original copy and then also reading at judges discretion I always thought pre 2007 if the so called agreement what so many of us seem to receive which seems to be just a (application form) with no prescribe terms on the same page as your signature a judge would kick this out ?

[Mineral1]

Re: Capital One

Well, as far as I am aware they NEED the original if the card was taken out prior to 6th April 2007 otherwise they cannot prove the debt. This would be a necessity to take court action. After this date the Judge will accept a recon copy of it. I can be corrected on that but I am pretty sure I am right. I would appreciate some input from them that know more than I here. I think you have been hard done by and I think the Judge was saying as much when he passed that comment. I have another thread running on here with Barclaycard and it is 4 years since they chased the debt as it is exactly the same situation as this one. They know they need the original which is why they have not taken court action. I also had a CITI card with where they did not have the original agreement and they also stopped chasing four years ago. The CITI card is not even on any of my credit files! These cards were taken prior to the date above.
This information I was given on the old Penalty Charges Forum. Mc

The reconstituted agreement for a card that age needs to be a true copy. ie It must carry the same terms and conditions, charges for late payment etc etc as the original. Hence "A true copy' I believe this standard is a legal one for the duplication of an original document, the copy must pass off (except for diminis) as being a blow for blow copy of the original.
Maybe you want to check out the terms sent, things (like late payment charges) were altered over that period

[McGinty]

Re: Capital One

Thanks for that Mineral1-it is as I thought then. The 'agreement' that they have sent is not an original copy or they would have sent a copy of this in its entirety. It is definitely not a true copy as it even says application form on the bottom-I would appreciate it if you could have a look at it please. My thoughts are that this is a recon of the original application and a subsequent full agreement would have been sent for me to sign and return.
I will have another look at what they have sent and post it tomorrow. Mc