PDADDY & WIFE vs. CAPTIAL ONE CCA LETTER

[pdaddy]

hi all,

 

Myself and wife sent Crapital One a CCA letter back in august, got a standard reply back stating that the letter was our agreement, (I used the cca template found here) then sent back another letter saying that they had followed protocol and provided the correct information we requested…(again using templates found here)

They haven't replied to either mine or my wife's letters, instead calling up wife every few days (I have started a log now, and also today am sending telephone harassment letters) I have been lucky in that I have only started to receive some texts asking me to call them (as if) the worst thing is they have even sent my wife late payment reminder letters and 'failure to pay' letters… despite been in dispute. They just carrying on regardless.

Bit concerned why theyre chasing wife more than me, but still the cheeky swine's have updated her credit file with 'late payments' despite the account been in dispute since 24th august 2009. its incredibly frustrating that they haven't acknowledged any of our correspondence, and the bit of paper saying this is your agreement was pathetic - it was a letter saying that these are your terms. Which were then printed on the reverse side of the letter - all blank, NOT a true and executed copy as per our request.

The 2nd letter I sent them (copy below) states they have 14 days to contact us, they haven't done so,

so my questions are now -

What do we do now?

How do we proceed?

What are our next steps to take?

　

ACCOUNT IN DISPUTE!

 

Date: 2nd October 2009

 

Dear Sir/Madam

 

I am writing to you again, for the 3rd time after this week receiving yet more telephone calls from your organisation, yet you have failed TWICE to respond to both my letters dated 14th august and then again my reply to you on 11th September 2009

 

BOTH letters have been sent recorded delivery and I have obtained a POD so I know they have been delivered, and safely received by your company.

Maybe you didn’t see the big typeset ACCOUNT IN DISPUTE, so for the avoidance of doubt, I have put in bold 26point font for you above. I hope this helps.

 

It would seem you have not yet absorbed the contents of these letters, and I ask you to act immediately and cease calling me, threatening me with more default charges, (which you cannot legally charge to my account since its been in dispute from 28th august) so I respectfully ask you immediately remove these charges, stop sending me threatening letters and default letters and furnish me with the information I have requested.

 

You are probably aware, and im sure you are, as I believe you have thousands of similar claims as mine, that yours is a very serious breach, so I would appreciate you attend to this matter with some degree of urgency.

 

 

The law clearly states and is set out to protect consumers like myself against these charges, interest, harassment etc when an account is in dispute! (Please see description in BOLD for reference)

 

So for the avoidance of doubt, I shall, yet again, for the 3rd time clearly set out the reason why my account is in dispute:-

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

You have failed to comply with my request, and as such the account entered default on 28th August 2009

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true signed copy of a credit agreement to be carried out before youenter into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[sunflower99]

Hi Paddy

I take it then they just sent a letter with no signature ! Just some unsignerd Ts and cs.?What year was your crapital One card taken out?They normally start by sending this tosh ie some unsigned ts amd condtions and when after a few letters they usually send many people a copy of an unenforceable application form!

[sunflower99]

About the phone calls i used to love to annoy crapital One and their inhouse collecters Debitarse by refusing to go through security with them! I just used to say communication in writing please in a silly robotic voice! several times in repsonse to every sentence they uttered!or sometimes i would just pick up receiver and lay it down somewhere letting them mutter theirdrivel to themselves! LOL:D or pretended to be a bit deaf! A lot of people just treat their calls as a joke in the end ! I even had a few of these plonker try to contact me at work,However just stand your ground and either ignore them or wind then up and they eventually get to see they wasting their time and money keep trying to contact a person who refuses to communicate by telephone with them and they give up!But it will take loads and loads and loads of callls,But in end i was quite getting to like winding them up!

[sunflower99]

Account Number

Account In Dispute

Re; Barclaycards recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I am writing to say that i made a request to Barclycard on ---2009 under section 77-9 of the Consumer Credit Act 1974 for a true copy of my agreement

I note that they have replied to the above by sending their companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that the company is still in default under the act..I wrote to Barclaycard on ----2009 informing them of this.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a "doorstep call", please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384

. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours Faithfully

[sunflower99]

Dear Sirs,

 

Account no

 

 

 

 

 

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfill your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An unsigned credit agreement with no personal details on it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.[/font]

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until ??/??.2009 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office the time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit information industry.[/font]

I expect you to write to me confirming that the account has been closed and no further action will be taken.

I look forward to your reply.

 

Yours faithfully

__________________

[sunflower99]

I used the above two lettersfor my Barclayshaerk account where i have same prolbem that they are just suplying some insigned Ts and cs

[pdaddy]

hey all, thnaks fo rreplies - truly greatful. although i must tell you for the last 3 days crap one have actually been callign me on mobile, then hanging up on me, before i have even answered it!!

 

looks liek theyre already anticipating my 'robotic voice' and are getting in first.....

 

also got home last night - another letter stating a defualt for non payment and another fee for unauthorised lending... as i have had 3 of thes enow which has suprise suprise put me over my limit on the card.... not that thats an issue right?

 

i did claim a few years ago an won, am thinking again about trying to claim back my charges for last 2 years or so - gotta be worht 250-300 quid? or shall i leave that alone as it may open a can of worms - whats the adivce on that one?

 

have sent letters to them yesterday for telephone harrassment too

[sunflower99]

i am sure they used to that to me when i had Debitarse! The phone would ring ! i would pick it up and someone would slam phone down though obviously can not be a 100% sure but lets say i have my suspicions especially as you and other people up against crapital one Debitarse had same expereince!Oh well it is their own time and money they wasting but a bit strange they resort to that sort of thing as they supposed to be professional people we are just annoyed consumers so we entitled to do it! and put phone down on them LOL but them doing it back is just plain wierd!

[pdaddy]

my card was taken out sept 2004 i believe. i have also got back my SAR request from them, imight as well try and get my £300 quid back of charges whislt were there - or is that a no go, i mean its a separate issue to my account been in dispute (isnt it?) more phonecalls today... the guys even had a go at my wife askign her why she isnt passign on the messages when they call home... she does... but why arent they acknowledging ANY of my 3 letters i have sent to them that have all been sent registered post. i know theyre tryign it on, im not scared, im reading to tackle them head on, and am not scared by their bullyin antics, my however is, and thinks our home is a risk etc, i keep tellign her its not, and fo rone we onyl bought the hosue 3 years ago... way after our cards were issued when we were private tennants.

[sunflower99]

Hi Pdaddy

They are cheeky so and sos! They have no right to accuse your wife of not passing messages on! LOL and sound very unprofesionalJust tell your wife to laugh at them when they say that!:DDont give them the satisfacton of them knowing their bullying phone calls getting to you or your wife,Just laugh at them take the mickey out of them ignore them or just plain annoy them by picking up reciever and leavie them spouting their garbage to no one on their own phone bill like i did to a lot of them! They will give up whem they realise they getting no where and just wasting their time and money!|I never as yet went down reclaiming charges road with any of my DCAS so can not advise you there but a lot of people have and been sucessful i believe!But tell your wife to try not to worry,Each time they set a pond feeder on you put it up on this thread for help and moral support and send them a account in dispute letter,I did with crapital One and their inhouse collecters Debitarse and now not heard from them for about 9 months ,So just stand up to them and normallyas it seems very probable you got an unenforceable agreement they normally eventually give up and leave people alone !

[pdaddy]

theyre still calling me from this london based 0207 no - so watch out folkes as theyre calling from 0845, 01132 (leeds) and now this 0207 nos. i have kept a log of every time they call - which theyre still aborting on, and hanginf up on me after just 1 ring!

 

have sent them telephone harrassment letter, seems theyre not caught up with it yet... so im hoping the calls will stop any day now.

 

myself and wife have had yet more letters through for 'late payments' and 'failure to pay' type charges, im unsure what to do next....they have not acknowledged either of our 2nd letters tellign them that what they had sent was not a true/excuted copy... account in dispute blah blah....

 

not sure what happens, as theyre not playing ball and conforming - so were not payign them a penny.

 

will they now hand the debt over to a DCA - what happens to us then - where do we stand if they do pass the debt onto a DCA?

 

ps - sunflower - i took heed your advice and my little daughter whos 18 months had a nice 'gibberish' chat with them last week when they called me at home on saturday : )

[Old Cogger]

That is their London HQ, probably soon get telephone calls from crapquest or Lowlife,

[pdaddy]

heres a new one, im now getting calls from 0151 no?

[pdaddy]

theres no giving up with them, thing is i told 'weenie' (yep thats her name) on saturday i wont be speaking to anyone on thephone, yet the calls still keep coming... however, it does seem my wifes barrage of calls have started to cease already...

[Old Cogger]

heres a new one, im now getting calls from 0151 no?

 

 

Could be Mackenzie Hall or Intrim Justitia theirs start with that No.

[sunflower99]

Hi Paddy:D

glad your little girl gave them some gibberish back! you will soon realise how pathetic these DCA on the phone are and why they are reagarded as a bit of a joke on these forums!

[pdaddy]

hi all

Today (Friday 30th October) I finally received a letter from crap one with what they believe to be a true and executed copy of my 'agreement', my wife also received hers today too.

 

We both have received EXACTLY the same kind of document, true enough it is signed by both parties, my self and someone at capital one, however, this form is called a GUARANTEED ACCEPTANCE FORM, in short, an application form.

 

The letter accompanying this stated that under section 78 they had already provided me with the current agreement, however, although not entitled to, they are providing me a true and executed signed copy. It also states that the credit agreement complies with the CCA 1974 and that this is the correct format...

 

You clearly have a valid and enforceable credit agreement with capital one...blagh blah blah....... It then goes on about how my account is in arrears etc

 

They sing off by saying that the account is not in dispute as they have clearly provided the necessary information.

 

So my questions:-

1. is this a true and executed copy of the agreement - I thought it had to have all the T&Cs on the same piece of paper.

2. as this is CLEARLY an application form - are they right? Or am I still within my rights to hold this account in dispute?

3. what is my next step? Is there a counter letter template I can now use to respond with? (I did look - couldn’t find one)

4. what else should i do? / be doing? Do I send back another letter, let the harassment calls still come in and just sit back and wait till they try to 'enforce' this.

5. does/has anyone else received similar letters/responses back from them?

6. they still keep calling me and aborting the calls, is there anything I can do to stop these calls? Maybe have a word with orange and tell them this no keeps harassing me? Where do I stand on this? I received a response to my 'telephone harassment' letter, bottom line is they said they WILL keep calling as the account is in arrears and they deem it fit to speak to me whilst the account is in arrears... Again where do I stand on this - do you need me to scan in letter/response?

Thanks again

Pete

[pdaddy]

bump?

[sunflower99]

Hi Paddy

unfortunatly they will countinue to insist this is an enforceable agreement whetjer it is or not,The fact that is is a 2004 one is good news that crapital one have to stick to very strict guidlines as to layout of agreement and oviously though i can not be 100% sure i tjhink with a 2004 one there is a good chancee that a lot of them done round about this time got a good chance of maybe not being legally enforceable ,My alleged agreement was a 2003 one and i know mine is a load of tosh and i hope ones done a year later may be tosh too though unless you get to see your original one there will aolways be a bit of a gamble but lets say there is a chance and also a lot of these agreements are microfilch copies and the original been destroyed .Someone seems sure that most crapital one alleged agreeents have been destroyed form those earlier years! which again can cause them problems in court as they can be compelled to being entire original to court though in this lottery of judges if you get a unfair judge who is very pro bank and thinks banks smell of roses may not know the consumer credit act very well or they ignore legalities and just look wrongly on moral argumenst may try and enforce an unenforceable agreement that is why it is always best to arm your self with as much knowledge you can to argue your case in court or do as i did in my MBNA one find a good no win no fee solictor

Edited November 4, 2009 by sunflower99

[sunflower99]

As i was saying in above post if it ever goes to litigation court stage whether your agrement is a load of tosh or not you will need to arm yourself with knowledge ,However in my crapital one case afterseveral months of phone clalls from crapital one and debitarse and exchanging a few account in dispute letters and then eventually ignoring them when thry ignored my very generous invitation to go up to Nottingham to view my alleged Crapital One aggreement at my own time and expense :Di was even trying to0 arrange a Caggers Crapital One Fan Club meet so we could all hire a few coaches and travel down to Crapital Ones offices to view our agreements but Ellie totaly ignored my letter about that! and just kept insisting my alleged agreement was enforceable and was not making much sense so i just ignored them from then on and have not heard anything since January though it could change! but like i did with my MBNA one if it ever was to get to litigation stage in future if they do renew their harrasenent of me i will be asking my solictors advice who is helping me to give my MBNA ones grief

[sunflower99]

Hi Paddy

It would be a good idea if you couold post up Crapital Ones latest offering on here so caggers can comment on it and try and answer your question about it

[pdaddy]

hi sunflower, thnaks for your replies ans support here. ill scan in my letter form them and also the telephone harrassment bit. ill scan it in and post up the link, hope that will work for everyone?

[sunflower99]

hi sunflower, thnaks for your replies ans support here. ill scan in my letter form them and also the telephone harrassment bit. ill scan it in and post up the link, hope that will work for everyone?

Hi Paddy

You are very welcome! Yes it will be great if you could scan up the alleged agreement!so we can make comments about any flaws we can see in it and hopefully be able to pull it to pieces!

[sunflower99]

In my alleged agreement which was a 2003 one they sent me my signed application form and also a second page which they sent with it which they are trying to imply is overleaf with out actually saying anything !Just by the act of sending it,they obviously tring to imply that the second page that has some prescribed terms on it are part of the same document and they are doing this trick with most alleged agreements now trying to confuse things and cast doubts:mad:

[sunflower99]

Also noticed that on mine they refferred to term 23 overleaf and there was term 23 overleaf ! So does the front of your application form they sent you refer to any terms which they say are overleaf?Also they sometimes try to get away with having something on appliatinon form that you agree to ts and cs or something like that but if it a pre 2007 if law applied correctly though some pro banks judges try to ignore this if you loose in the lottry of judges if it goes to litigation by the 1974 the prescribed terms can oonly be found in the four corners so to speak off in the orinal agrrement! They can not be found anywhere else to be legally enforceable.