dpick V cap1 and section 85

[dpick]

Hi all have been working on MBNA and JD Williams lately had a win with JD Williams £697 and admitted no agreement, MBNA at AQ stage and issued Part 18 request for original agreement to be disclose at court. Now I have written to Crap1 requesting PPI refund and got the usual you agreed to it on application etc if you did not know about pre existing medical clause your fault not ours.So this posting this as a starter I am not sure if I should include PPI and breach of s(85) CCA 1974 in one claim do not want to make the claim to complicated and give crap1 a chance to have claim moved to fast track. My position at this time is PPI would require LBA next. For s(85) I have this prelim letter

 

Your comments on this letter and should I restart PPI with s(85) and write a new prelim. I will not be sending Cap1 anything until I have comments.

 

Letter prelim s85

 

MS Ellie Renshaw

Capital One Bank (Europe) plc

Trent House

Station Street

Nottingham

NG2 3HX

 

Date

 

Re account XXXX XXXX XXXX XXXX

 

 

Dear Ms Ellie Renshaw

 

I thank you for your letter of 21st September 2007.

 

After further reflection and advise it is now the opinion of myself and my advisers that after studying the documents Capital One supplied for our s78 (1) CCA 1974 request and subject access request under Data Protection Act 1998 that Capital One Bank, do not hold a properly executed enforceable credit agreement with respect to the above account number.

 

 

78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

It would seem that this far, Capital One have failed to provide a true copy of the original executed agreement. The application form supplied does not include any of the prescribed terms, which must appear within the signature document. These include details of credit limit, interest payable, details of any power to vary the agreement or debtor’s repayment obligations etc. It is not sufficient for any of these prescribed terms to appear in subsequent, separated or additional documents. Please also note that the relevant terms and conditions which have not been supplied should be those which were in force at the time of the agreement being made, only these terms and conditions would allow any future variation, and bear any reference or link to the any agreement made.

 

You have now exceeded the 12 working days plus one calendar month allowed by statute and Capital One Bank are now in serious default of their obligations under section 78(1) of the CCA (1974). Consequently section (6) of the CCA 1974 now applies:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

I am of the opinion that based on the documents Capital One bank has supplied that there never has been a properly executed credit agreement in the lifetime of the account.

 

Therefore it is also my opinion that under s (85) of the CCA 1974 you could not have supplied a copy of the executed agreement each time the credit card was replaced, therefore Capital One are unable to comply with that section of the act and as such are in default. Consequently you have been in breach of s (85) since 6th February 2004.

 

Consequently section (85) of the CCA 1974 now applies:

 

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

and

 

(b) if the default continues for one month he commits an offence.

 

What I now require.

 

The refund of all interest applied to the account since 6th February 2004 less interest applied to charges already refunded, total sum £642.98

 

I also claim compound interest at a rate of 24.9% as set out in the attached list of charges. I base this on the recent precedent in Sempra Metals Ltd V Her Majesty’s Commissioners of inland revenue, and the interest rate applied is based on the interest rate that would be applied under the terms of the above-mentioned account were an enforceable agreement to exist.

.

Therefore I claim

Interest applied to the account by Capital One £642.98

Compound interest on that interest applied by Capital One bank of £829.76

 

Total Claim £1472.74

 

My targets to resolve this matter

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or you do not respond positively within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

 

 

Yours truly,

 

 

 

Mr Dpick

[ukaviator]

Hello dpick

 

The paperwork/agreement you have from them, was it an Application Form? Also would it be better to keep the claim for both PPI and unenforcable together?

 

Will the totals, with PPI, you are claiming, take you over the £5000 limit for small claims?

 

Also in your letter for PPI refund, you should put in your letter the Misrepresentation Act 1967 section (C7) 1+2. .. From the Ministry Of Justice website:

 

1. Removal of certain bars to rescission for innocent misrepresentation.

Where a person has entered into a contract after a misrepresentation has been made to him, and—

(a)

the misrepresentation has become a term of the contract; or

(b)

the contract has been performed;

or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Act, notwithstanding the matters mentioned in paragraphs (a) and (b) of this section.

2. Damages for misrepresentation.

— (1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.

 

So as i see it, by signing what you thought was a Credit Agreement with Capital One, you have been the victim of Mispresentation, and this could be used for the PPI side of the claim also.

[dpick]

Hi UK the form was a mail shot application form from Feb 2000 though I cannot remember much about it. I do know that when I filled it in I did not have to sign anything else, I received the card and had to ring to register the card. I have done both a CCA 1974 request and a FULL S.A.R - (Subject Access Request) that included a request for all data held on my account. All I have received re agreement is the application form no T&C nothing. The card had a balance of 1600 when I reclaimed charges balance now 30.98 if I reclaimed all interest not just s85 from 2004 and PPI etc the claim would be approx 3500.

 

dpick

[ukaviator]

I see .. . Here is some more Ammo for you.

 

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.

 

There you go, guilty as charged. . . .

 

Maybe worth copying the page.

 

Uk

[dpick]

Hi UK just spotted your post this will be good for everyone that has had an application form from capital one for a CCA 1974 request I will print this off, this would point to Capital One finding that the way they worked their agreements before would make them unenforceable.

 

thanks again dpick

[ukaviator]

It shows that they have a procedure in place for credit. How long it's been there is anyone's guess. It probably is quite recent, as these short application forms were being used for years. Mine since 1999.

 

Did you find it ok on the website? . ..

[ukaviator]

How are you progressing with this dpick? . .

[dpick]

Hi uk have been stuck in the middle of my MBNA claim having to apply to the court to enforce my part 18 request to MBNA for all documentation they hold relavant to the inception of my credit agreement. Court ordered that MBNA must comply by 29 feb 2008

 

Capital one has been a bit on the back boiler I have prepared Letter as described above sent recorded delivery and signed for 11/01/2008 lba sent on recorded delivery 28/01/2008, all that I have received is same template letter I got previously that I agreed to PPI etc. Will be starting on N1 this comming week unless something comes up with MBNA

 

dpick:)

[Mike220359]

Any more movements on this one