Are Cap One Attempting To Hoodwink Me With This Cca??

[Desperate Daniella]

Hi exasperated,

 

 

Apologies for the delay in coming back to you. My computer went haywire, and I am useless at sorting these things out for myself.

 

 

A lot of people on here feel it's okay to defend if they get taken to court, but personally I'd rather head them off before they get that far and I have played letter tennis with loads of them for the past six years and a bit. I'll feel happier when it's a slightly longer bit .....!

 

 

The problem is that even with a perfectly good case you can get a difficult judge who just asks if you've had the money and therefore gives judgment against you.

 

 

Lowell gave up with me after about two years and decided to write the balance off. It was a large amount and I'm sure they would have pursued it if I hadn't made it clear that I would fight back and that I could prove beyond any doubt whatsoever that what they were producing as [my] agreement could not have been supplied when I opened the account.

 

 

Your choice as to what to do but if you would like to write to them I can help you (and will be around now).

 

 

DD

[exasperated]

Hi DD

Personally I don't mind sending them one letter and informing them at the same time that I don't intend to get involved in 'letter tennis'. I don't like not to adhere to Anyorch advice but I would feel more comfortable in this instance sending them a final reply to their legal threats. If you could advise therefore it would be appreciated.

How did it come about that they wrote the balance off?

Thanks

Exasp

[Desperate Daniella]

Hi exasperated,

 

 

I got them to write it off by playing letter tennis.

 

 

I raised a number of issues, which I can give you here if you like, and if they didn't answer properly, which they didn't, I kept repeating the questions. In the end they said they didn't agree with anything I had said but decided to write if off anyway. That meant I got rid of it completely three years before it became Statute Barred. It was a lot of money and I'm glad they gave up because Lowell often start issuing Statutory Demands if they know they have unenforceable agreements. Most people defend those successfully but it's a lot more hassle than getting them to write it off.

 

 

I'd also rather avoid the possibility of being taken to court even if I knew I had an unenforceable agreement just in case I got a judge on a moral crusade.

 

 

In this case you can prove beyond any doubt whatsoever that the printed unsigned agreement they say is yours cannot have been sent to you at the time you made your application.

 

 

I always play letter tennis. It's worked very well for me, and it's absolutely brilliant when you get a DCA to admit that they don't have an enforceable agreement.

 

 

DD

[exasperated]

Hi DD

Lowell have been searching my credit file every two moths since april last year.

I would like to send the letter so soon as you have time please can I have a copy of it?

Thanks for your help

[Desperate Daniella]

Hi exasperated,

 

 

The points you need to make in your letter are:

 

 

1. You have only ever received a copy of an application form which does not contain the Prescribed Terms and therefore does not comply with the Regulations of the Consumer Credit Act 1974. The alleged (printed) agreement which was also provided has not been signed by you and in any case you can prove beyond any doubt whatsoever that this document was not sent to you at the time you applied to open the account.

 

 

2. Tell them that you are aware that none of the early Capital One agreements contained the Prescribed Terms and that Capital One know very well that they are unenforceable.

 

 

3. Refer them to the Waksman Judgment in Carey v HSBC, paragraph 234 (4) which states that where an agreement has been varied by the creditor a copy of the original agreement must be supplied.

 

 

4. Remind them that they have an obligation under the Consumer Protection from Unfair Trading Regulations (CPUTR 2008) to advise you if they hold, or have ever held, a properly executed credit agreement pertaining to yourself, and that they are equally obliged to tell you if they hold so such agreement.

 

 

Be prepared to get a letter from them which fails to answer your questions!

 

 

It did take a bit of time and tennis but I got there in the end!

 

 

DD

[exasperated]

DD

Thanks for your time I will get this sent to them today

Really appreciate it thanks

Exasp

[Desperate Daniella]

Good luck, but don't expect them to just agree to it. I had to send several letters and get more and more blunt with them.

 

 

Let's see what they come back with.

 

 

DD

[exasperated]

Hi DD

Hope you are well.

Got a reply and heres what it says..

We thank you for your recent letter and have noted your comments noted with regards to the documentation provided in response to your formal CCA request.

Following your completion of the application form and its acceptance by Capitol One the credit card was sent to you with the terms and conditions applicable to your account prior to any use of the card. The application form clearly states that you are signing an agreement and by doing so you agree to be legally bound by its terms. These were enclosed together with the latest set of variable terms and conditions that applied to the account.

The procedures and processes of Capitol One would not have allowed any credit facility to have been or utilised if they had not received a signed application. Details copy statements to evidence the credit used by you under this facility have also been provided.

Since April 2007 the court has discretion to decide whether any amount is properly payable taking into account all the circumstances of how the debt accrued and whether the agreement was improperly executed.

We have noted the reference you have made to the consumer protection from unfair trading regulations 2008. We do not believe to be any substance in your view that Lowell are undertaking an unfair practice by not having a copy of the credit agreement in our possession at the point the debt was purchased from Capitol One.

Lowell has purchased this debt in good faith from Capitol One whose records indicate that this debt is properly payable. lowell has not received any indication from you if the debt claimed is denied and can confirm we are comfortable with the fact that the documentation provided is sufficient to ensure that we have complied with your request under the provisions of the consumer credit act.

On the basis that we have provided you with the evidence that this debt is outstanding and belongs to you we should be grateful if you would contact us by telephone on ....... to discuss the ways in which you intend to repay this account which are affordable to you.

[renegadeimp]

Typical bluff by lowells. Basically they're saying they don't have the paperwork and can't get it, but try to make you pay anyway. I would report them as they are lying and misleading you.

[goodatresearch]

The courts don't have the discretion for pre 2007 agreements, they would have to show you signed a properly executed agreement. They know this and are misquoting the law in an attempt to mislead you. They are basically admitting that the prescribed terms weren't present at time of signing an application form. Keep this letter safe.

 

 

Hi DD

Hope you are well.

Got a reply and heres what it says..

We thank you for your recent letter and have noted your comments noted with regards to the documentation provided in response to your formal CCA request.

Following your completion of the application form and its acceptance by Capitol One the credit card was sent to you with the terms and conditions applicable to your account prior to any use of the card. The application form clearly states that you are signing an agreement and by doing so you agree to be legally bound by its terms. These were enclosed together with the latest set of variable terms and conditions that applied to the account.

The procedures and processes of Capitol One would not have allowed any credit facility to have been or utilised if they had not received a signed application. Details copy statements to evidence the credit used by you under this facility have also been provided.

Since April 2007 the court has discretion to decide whether any amount is properly payable taking into account all the circumstances of how the debt accrued and whether the agreement was improperly executed.

We have noted the reference you have made to the consumer protection from unfair trading regulations 2008. We do not believe to be any substance in your view that Lowell are undertaking an unfair practice by not having a copy of the credit agreement in our possession at the point the debt was purchased from Capitol One.

Lowell has purchased this debt in good faith from Capitol One whose records indicate that this debt is properly payable. lowell has not received any indication from you if the debt claimed is denied and can confirm we are comfortable with the fact that the documentation provided is sufficient to ensure that we have complied with your request under the provisions of the consumer credit act.

On the basis that we have provided you with the evidence that this debt is outstanding and belongs to you we should be grateful if you would contact us by telephone on ....... to discuss the ways in which you intend to repay this account which are affordable to you.

[exasperated]

Yes I will keep this safe.

Thanks for the advice