Pinky ~V~ Capital One

[AuntiePink]

The bullet has been bitten! Today I finally sent a CCA letter to Capital One complete with postal order. My statements have the date the account was opened on them as standard but that's not to say they've got a proper agreement so, as of today...

 

the clock is ticking...

[steven4064]

Welcome auntie

 

keep us informed - there is always someone here to help

[AuntiePink]

Received these from Cap One this morning. Can someone that knows what they're looking for cast an eye over for me please? The T&Cs are the current ones but the two pages of 'agreement' are photocopies so I think I may be on a hiding to nothing here

 

 

 

 

Apoogies if they're either too small to read or completely mahooosive!

[steven4064]

Looks like a properly executed agreement to me

[AuntiePink]

Thanks, Steven, I thought as much. I guess the next step is to SAR and reclaim charges then? Every little helps, as they say!

[mkandy]

Deffo have to go the way that i went, CCA route wont work!

[ruralgirl]

The first part (with your signature) is an application form. Are those T & C from 2003 when you opened the account or are they the current ones? Their letter says they are the current ones, surely they have to be the ones from 2003 to make it a valid CCA.

[AuntiePink]

I think they're current, they're not photocopied like the agreement anyway.

[steven4064]

Why do you need to send a SAR if you already know what the charges are?

[Curlyben]

Sorry to say Steven, but that ISN'T an enforceable agreement at all, but a standard mailer application form with T&C that are unrelated. This type of "agreement" is not allowed under SI 1983/1553.

Basically pre May 2005 agreements MUST include the prescribed terms within the body of the signature document and NOT be a separate T&C document.

[pt2537]

its gotta be said that those T&Cs could be from any document,

 

the bit that stands out to me is the "these terms are taken from.......of the terms and conditions you sign with us" well clearly these must be the terms you sign if they are part of the agreement so that bit under the Regulated by the consumer Credit Act really blows em out of the water, unless tehy can prove that they are on the back of the part you signed

[ukaviator]

On their website, they tell you of the procedure they use to issue you with a card and an agreement.

 

On their website under FAQ's it gives you the procedure once you have filled in the form. It says :

 

Do I need to sign a credit agreement?

 

Yes. After you've been accepted, we will send out two copies of the credit agreement to you. You need to read and sign the one with the yellow band at the bottom of the page, and send it back to us. The second is for you to keep.

 

On your paperwork above, there are no terms. How much credit you had been given, what the APR is etc. You have an unenforcable agreement and they know it. Hence the waffle in that letter.

[steven4064]

Thanks ben, pt and uk for the correction.

 

Perhaps you could take this opprotunity to elucidate. I have seen other agreements on this site that have been deemed properly executed and the only T&Cs on the page with the signature relate to the DPA.

 

I assumed what was posted above were two side of one document - presumably this would not do from what you have said.

 

Are you saying that an enforceable agreement (pre May 2005 anyway) must have all the T&Cs on the same page as the signature? What is the difference post May 2005?

[pt2537]

Thanks ben, pt and uk for the correction.

 

Perhaps you could take this opprotunity to elucidate. I have seen other agreements on this site that have been deemed properly executed and the only T&Cs on the page with the signature relate to the Data Protection Act.

 

I assumed what was posted above were two side of one document - presumably this would not do from what you have said.

 

Are you saying that an enforceable agreement (pre May 2005 anyway) must have all the T&Cs on the same page as the signature? What is the difference post May 2005?

 

Hi Steven,

 

aint the law fun:)

 

the "may" thing is to do with the agreeements amendments which amended the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

the biggest issue i have with that document is the fact that the regs require the prescribed terms to be within the agreement not in a separate document entitled T&Cs, now if its a 2 page document the problem you sometimes come up against is if the document is linked I.E it looks as if the two pages are part of the same document

 

here however,it would be very easy to argue the T&Cs do not appear to be part of the same document. the burden is upon the creditor to prove the document is valid and compliant the question i would ask is why would the document i am purported to have signed have such a reference under neath it unless it was not part of the signature doc

 

 

 

regards

paul

[AuntiePink]

Ooerr! If it's any help to my learned caggers, the terms and conditions were an actual copy on proper foolscap length paper and current so I didn't bother scanning them in (but can do by all means).

 

The two pages above were photocopies. The 'Credit Agreement' has 2 barcodes/serial numbers on but the 'Credit Agreement Regulated by...' has none.

[steven4064]

here however,it would be very easy to argue the T&Cs do not appear to be part of the same document. the burden is upon the creditor to prove the document is valid and compliant the question i would ask is why would the document i am purported to have signed have such a reference under neath it unless it was not part of the signature doc

In this case (as I assumed) the T&Cs could be on the back of the sheet with the signature - ie part of the same document. Because it's a photocopy, you can't tell. However, they only have to demonstrate that a properly executed document exists when they get to court in which case they can just produce the original, surely.

[pt2537]

another thing which springs to mind.....................wheres the cancellation rights?

[AuntiePink]

Why do you need to send a S.A.R - (Subject Access Request) if you already know what the charges are?

 

I don't know how much the charges come to yet, I was doing the CCA as a first step.

[pt2537]

failure to provide cancellation rights would render this unenforcable under s64 CCA 1974

 

 

64. Duty to give notice of cancellation rights

 

 

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a)

must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b)

except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either— (a)

it is sent by post to the debtor or hirer before the credit-token is given to him, or

 

(b)

it is sent by post to him together with the credit-token.

 

 

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if— (a)

on an application by that person to the Director, the Director has determined that, having regard to—

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

(ii) the information provided to debtors or hirers before such agreements are made,

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

 

(b)

any conditions imposed by the Director in making the determination are complied with.

 

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

 

[AuntiePink]

There is a right to cancel box on the terms and conditions they sent but of course, they're the current terms, nothing to do with what I signed in the first place.

[Curlyben]

As I said the T&C's are meaningless, so ignore them.

[steven4064]

Below is a credit agreement from Clydesdale. The only T&Cs with the signature relate to DPA. I presume the other T&Cs are on the back - they didn't send anything else in response to CCA request. I know this is not enforceable as it stands but I know that they have an enforceable agreement they could produce in court.

 

[pt2537]

that agreement contains the prescribed terms defined in schedule 6 coloum 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) within the signature document so in its own right i would be enforcable

[AuntiePink]

Well it seems Ms Renshaw has finally got round to my file as I received this today...

 

 

The continued overleaf part was just about the phone numbers, nothing important.

 

Now pondering the next step...

[ukaviator]

My friend has the same identical letter. They sent the CURRENT terms and conditions to you, so they have not complied CCA 1974. The terms and conditions sent, should be from the time you signed your agreement.