Capital one credit card-Lowell- Bryan carter

[MIKE770]

Re: Capital one credit card-Lowell- Bryan carter

as with so many capital one so called agreements only flyer application forms, if T&Cs were on front/reverse you would need to borrow Jodrell Bank to read them, hence Capital one CCA1974 (Not) fail on most occasions pre 2007.

[MIKE770]

Re: Capital one credit card-Lowell- Bryan carter

How come all your documents are lying down but they stand up when you open them?
:scared:

"Viagara"

[BLUEOTTER]

Re: Capital one credit card-Lowell- Bryan carter

[ATTACH=CONFIG]19291[/ATTACH][ATTACH=CONFIG]19292[/ATTACH][ATTACH=CONFIG]19293[/ATTACH][ATTACH=CONFIG]19295[/ATTACH][ATTACH=CONFIG]19296[/ATTACH]

Many Thanks to all of you who have replied so far, its reassuring and I am thankful for you taking the time.

I fear I may have caused a pickle and confusion which I will now clear up !by referencing the pics ,Left to Right.

No1 and No2 are the same document , it looks like a one sheet copy of a tri fold flyer,the top section states Application form ,the middle bit,Credit Card Account Agreement and the first paragraph states
"I have read the terms and conditions setting out the agreement with Capital One and in the event that my application is accepted I agree to be bound by these terms and conditions as amended from time to time.Regardless of whether or not my application is accepted I understand and agree the information about me may be used in accordance with paragraph 23 of the terms and conditions.I am over 18 years of age."
The much bigger second paragraph is all concerned with credit scoring and searches.

No3 is a letter from Capital One circa February 2010 that contained docs No1 and No5 .

No4 is from a further letter Capital one sent circa April 2010 that contained current agreement terms as at 2010.It looks like a stand alone letter but is attached with those current terms that are called V14#(not uploaded) again 6 pages long.

No5. As above this is the first page of the reconstituted terms and conditions that accompanied No1,it is 6 pages long (I just uploaded the first page) is called V6# and its final page lists charges that aren't contained within the main body ie:-
Late or Failure to pay charge - £15
Returned Cheque charge-£15
Overlimit Charge - £15


Update

I think its interesting that No3 does state
" for the avoidance of doubt, the signature page provided is a scanned copy of the signature page of your original agreement only. Included on the reverse was an extract of the terms of your original agreement( including the prescribed terms) or the full terms of your agreement, which can be referred to in the reconstituted agreement enclosed "
To my way of thinking capital one have actually admitted that they don't know what was on the reverse of the application/ agreement.

I haven't uploaded Bryan Carters letter,theres too muh information that identifies me directly,its just standard fare otherwise and awaiting instruction from their client who have said I must direct all correspondence to Bryan Carter now anyway.The instruction will be to begin Court Action,i have no doubt unless I can convince them that its fruitless.............even then that may not stop them.

As for the horizontal pics !! No idea , the only thing about computers that logical is they're illogical
thank you

p.s I'm more than happy to post copies of these out to you Amethyst if you want them for your archives or such like.

[nemesis45]

Re: Capital one credit card-Lowell- Bryan carter

What you need to determine is if out of the document supplied you have
a " proper" copy of the original agreement or a compliant " reconstituted
agreement.
A recon must have Your name and address at the time the account was opened.
Same for the creditor.
All the T's& C's relevant at the opening and closure of the account.
Any other documents mentioned in the T's & C's ( Capone sends out the full T's & C's in booklet when the card is issued)
Any material amendments to the T's& C's made during the life of the agreement.

nem

[BLUEOTTER]

Re: Capital one credit card-Lowell- Bryan carter

What you need to determine is if out of the document supplied you have
a " proper" copy of the original agreement or a compliant " reconstituted
agreement.
A recon must have Your name and address at the time the account was opened.
Same for the creditor.
All the T's& C's relevant at the opening and closure of the account.
Any other documents mentioned in the T's & C's ( Capone sends out the full T's & C's in booklet when the card is issued)
Any material amendments to the T's& C's made during the life of the agreement.

nem

Thanks,well it has my name and address on it ,that's in the top line of doc no5 and obscured. I have been sent T&C's for both the start and end of the account,they're uploaded.

Whether they're worth anything I couldn't really say but this is a 2001 agreement and I was under the impression that to be a properly executed agreement it needed to have been all presented with the signed agreemen. There's no way this could have been as its just a tri fold application form,capital one have confirmed as much,they don't know whether a full or extract was on the reverse of the application form.
.
Also I didn't think a reconstituted agreement could be accepted as being lawful with an account that was begun prior to 2007...............I stand to be corrected though.

[nemesis45]

Re: Capital one credit card-Lowell- Bryan carter

Thanks,well it has my name and address on it ,that's in the top line of doc no5 and obscured. The rest of it is open to conjecture isn't it but as this is a 2001 agreement I was under the impression that to be a properly executed agreement it needed to have been all presented with the signed agreement,there's no way this could have been as its just a tri fold application form. I didn't think a reconstituted agreement could be accepted as being lawful with an account that was begun prior to 2007...............I stand to be corrected though.

You are correct the Original is required, but Lowell/ Carter could try to convince a court ( or try to make you believe that they can) that given their " evidence" there is an agreement and here's the proof e.g. statements showing usage of the account and the debt is enforceable.

nem

[FlamingParrot]

Re: Capital one credit card-Lowell- Bryan carter

Thanks,well it has my name and address on it ,that's in the top line of doc no5 and obscured. I have been sent T&C's for both the start and end of the account,they're uploaded.

Whether they're worth anything I couldn't really say but this is a 2001 agreement and I was under the impression that to be a properly executed agreement it needed to have been all presented with the signed agreemen. There's no way this could have been as its just a tri fold application form,capital one have confirmed as much,they don't know whether a full or extract was on the reverse of the application form.

The requirement has always been that there should have been a properly executed agreement with all the terms prescribed by the law, presented to you to sign at the time you opened the account. The only changes in legislation refer to online applications from 2005 onwards where a tick box became the equivalent of a signature.

The main difference is that, with accounts from April 2007, the court is not prevented from enforcing even when there wasn't a proper agreement to start with. Note how s.127(3) which stops the court from enforcing, refers to what was presented to you when you took out the card. The issue here is that, if it went to court, you'd have to make an assertion as to what you signed and what you agreed to back in 2001, i.e. whether it was a booklet that didn't have all the terms and the terms were later sent to you with the card as was often the case, then you'd have to say so.

[FlamingParrot]

Re: Capital one credit card-Lowell- Bryan carter

Also I didn't think a reconstituted agreement could be accepted as being lawful with an account that was begun prior to 2007...............I stand to be corrected though.

This is a common misconception. In Carey -v- HSBC, it was established that a recon could be accepted: http://www.legalbeagles.info/forums/...recreated-docs

The case was heard back in 2009 and the accounts in question were pre-2007.

Note the bits from the judgment highlighted below, regarding recons:

1. (11) It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;
   (12) Obviously, in theory, there is more possibility of error if a creditor reconstructs from sources other than the executed agreement itself but for it to be able to reconstruct at all it will need the details of the debtor, the type of card and the date when made. If it has such details, it appears that there is no real difficulty in ascertaining the applicable terms including the relevant Prescribed Terms. And if so, there is unlikely to be a real risk of inaccuracy; I do not accept that a reconstituted copy is simply based on "mere assertion" by the creditor. It must - of necessity - be based upon records held as to the debtor and the agreement he made. That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty (as stated by Mr Gun Cuninghame) that it is an "honest and accurate" copy;
   (13) I have already adverted to the overarching purpose of the Act being consumer protection within the ambit of a new and consistent framework which has benefits for lenders, too. But that does not impel a conclusion that the purpose of s78 must be the Proof Purpose. I accept that Part V of the Act provides important protection to the debtor in particular at the time when the agreement is made. Hence the statement of Clarke LJ in McGinn v Grangewood [2003] CCLR 11 at para. 70 to the effect that the purpose of sl27 (3), which may work harshly against a creditor, is to ensure that the amount of credit is correctly stated. And the statement of Sir Christopher Slade in Huntpast v Leadbetter [1993] CCLR 15 at p27 that it is crucial to the working of the Act that the parties know at the date when they make the agreement whether or not it is regulated. But none of this assists very much on the question of the nature and extent of the copy to be provided after, and in some cases many years after, the agreement was made;
   (14) Mrs Thompson submitted that the approach she advocated with Mr Uff was not merely dependent on the Proof Purpose but also followed from the language of s78. But I do not accept that the language here impels that result and all the factors already mentioned point away from it.
2. Accordingly, the copy need not be as contended for by Mr Uff and Mrs Thompson and instead, a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

[Berniethebolt]

Re: Capital one credit card-Lowell- Bryan carter

You are correct the Original is required, but Lowell/ Carter could try to convince a court ( or try to make you believe that they can) that given their " evidence" there is an agreement and here's the proof e.g. statements showing usage of the account and the debt is enforceable.

nem

For a pre 2007 agreement this is not quite the accurate case. You would need to affirm that you did not sign any such agreement and on the balance of probability the court would need to agree. There was a case where the defendant did just that but due to what can only be described as less than reliable evidence the court found that on balance she did sign such an agreement . She lost her case and was refused leave to appeal

[Amethyst]

Re: Capital one credit card-Lowell- Bryan carter

I could do with a copy of #v6 as we are missing that one in the library... just photo's like you have done with the other's is fine - email admin@legalbeagles.info

If the v6 is the agreement they intend to rely on, as a retype of the terms that would have been on the back of the signature page then it will probably get through as enforceable.

So the two column agreement is the terms as varied then? at 2010 v14 is right ( see in the terms and agreements library) - so they probably have complied fully with the CCA. Soz xx

[BLUEOTTER]

Re: Capital one credit card-Lowell- Bryan carter

I could do with a copy of #v6 as we are missing that one in the library... just photo's like you have done with the other's is fine - email admin@legalbeagles.info

If the v6 is the agreement they intend to rely on, as a retype of the terms that would have been on the back of the signature page then it will probably get through as enforceable.

So the two column agreement is the terms as varied then? at 2010 v14 is right ( see in the terms and agreements library) - so they probably have complied fully with the CCA. Soz xx

Yes it looks like they would rely on the v6 but this document is over 6 pages long, I highly doubt it was on the back of a tri fold application form and as I mentioned at the bottom of post 18 , Capital one have stated they don't know what was on the back of the form ...................does that in itself not cast doubt on what was provided ?
(v6 sent to you )

[FlamingParrot]

Re: Capital one credit card-Lowell- Bryan carter

Yes it looks like they would rely on the v6 but this document is over 6 pages long, I highly doubt it was on the back of a tri fold application form and as I mentioned at the bottom of post 18 , Capital one have stated they don't know what was on the back of the form ...................does that in itself not cast doubt on what was provided ?
(v6 sent to you )

There are two different sections of the CCA affecting enforceability here:

• s.78 refers to the provision of information and the Carey case quoted above dealt largely with that side of things. Non-compliance with a s.78 request is a bar to enforcement but only for as long as the breach remains and if it went to court, a judge could find that s.78 was complied with by sending you what they've sent you. Note that this doesn't necessarily make the agreement enforceable as such. For example, in this rather well known case, the judge found s.78 had been complied with: http://legalbeagles.info/santander-c...ew-misc-14-cc/

The Defendant’s section 78 request In order to comply with section 78 the creditor must provide a copy, reconstituted if necessary, of the terms and conditions originally agreed between the parties and, if different, those in force at the time of the request within 12 working days, the agreement is unenforceable until the request has been complied with. On 17th November 2010 the Defendant made a section 78 request to Lewis Debt Recovery, a chasing letter was sent on 6th January 2011 and a section 78 request was made to the Claimant on 15th January. The request was replied to on 2nd February. The Defendant sent an entirely disingenuous reply on 4th February alleging that she had received information for the wrong account. She claimed that she needed information for account 5###### not the information she had been sent which related to account 6######. Her evidence was that she had kept the original agreement and a moment’s checking would have revealed to her that the 6#### number related to her original account. 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.

Yet the defendant still won! :whoo: :whoo:

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

• s.127(3) refers to what was presented to you at the point of signature. It may well be that the terms you were supplied with were not on the back of the application form but you'd need to make an assertion regarding that point and say why you are saying so. In some cases people have filled out a form that was at the back of an advert or a booklet that only had the questions but no terms, etc.

[nemesis45]

Re: Capital one credit card-Lowell- Bryan carter

For a pre 2007 agreement this is not quite the accurate case. You would need to affirm that you did not sign any such agreement and on the balance of probability the court would need to agree. There was a case where the defendant did just that but due to what can only be described as less than reliable evidence the court found that on balance she did sign such an agreement . She lost her case and was refused leave to appeal

Yes it is quite accurate thank you.

once again

[Berniethebolt]

Re: Capital one credit card-Lowell- Bryan carter

Nemesis
I do not want to fight but you must agree that there has been a case where no signed agreement was found yet it was still enforceable therefore your statement was not entirely accurate. The case was Arrow Global v Frost .

It may not be a precedent and rare but it shows it can happen.

[FlamingParrot]

Re: Capital one credit card-Lowell- Bryan carter

Nemesis
I do not want to fight but you must agree that there has been a case where no signed agreement was found yet it was still enforceable therefore your statement was not entirely accurate. The case was Arrow Global v Frost .

It may not be a precedent and rare but it shows it can happen.

Not my favourite case. In fact, I do my best to try and forget that one.

It was all about the judge not believing the defendant was a credible witness when they said they did not sign an agreement. :mmph:

Credibility is paramount in any court environment, where judges have to decide which side is telling the truth. :decision: Only a few hours ago I received a judgment in my favour (of a totally different nature) where there was a lot of conflicting evidence but the judge ruled in my favour on every point because he believed what I said over what the respondent said; :whoo: shortly after that I was chatting on the phone with someone who's won a few cases also by being a credible witness. :high5: The importance of credibility cannot be emphasized enough. We tend to be more familiar with the concept in terms of criminal litigation where there's a jury involved, etc. however, it's equally significant in civil litigation. :juge: