Is this Capital One CCA enforceable?

[Blondmusic]

I am dealing with Capquest on behalf of a friend of mine. They are chasing him for a Capital One Credit Card debt which they have bought. I sent off a CCA request earlier this year and they finally sent him this a few days ago.

 

I just want to know if this is Enforceable or not? My friend is realy worried about paying this since his wife left him leaving him to pay all the bills and care for their son.

 

Sorry for the poor quality but this is how they were sent. The Terms and Conditions were on a separate piece of paper stapled to the first page.

[Blondmusic]

Bump!!!!!!!

[IdaInFife]

is this front and back?

 

have a read of these

 

http://www.consumeractiongroup.co.uk/forum/capital-one/50003-havinastella-capital-one.html

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html

 

have moved your thread top the cap one forums na dhave a read around there

[ScabHunter]

There have been a great many of these short application forms on here. No, these were not front and back, although many a DCA is now trying to CONvince people that they were.

 

Stand your ground on this, but be prepared for a fight. I'll try to find some threads of people who have had the same thing.

 

SH

[Blondmusic]

Thanks for that. We requested the CCA months ago and they sent us those 2 pages stapled together saying its enforceable.

 

Which letter should we send now?

[Blondmusic]

I am helping a friend deal with various DCA's since his wife left him.

 

 

He is a shift worker who is now on reduced hours at work and he is struggling to pay everything and care for his son.

 

I have been helping him deal with Capquest who despite numerous letters continue to call him demading money.

 

 

Earlier this year we sent off a CCA request and it took them a while to reply.

 

 

Anyway i started a thread to ask if the CCA was enforceable. Link to that thread is here

 

 

http://www.consumeractiongroup.co.uk/forum/capital-one/233937-capital-one-cca-enforceable.html

 

I recently sent Capquest the Telephone Harrassment letter to stop them calling my friend on his works phone. My friend works as a Train Driver and is only allowed to answer his mobile for works calls. Capquest have taken no notice and continue to phone him. I even told them in the Telephone Harrassment letter that the mobile phone belongs to my friends employer but they have ignored it.

 

I want to get this sorted sooner rather than later. Any advice will be appreciated.

[jimbo45]

Hi there

I believe that you could still get them under a Cease and Desist order -- the old Wireless Telegraphy Act 1949 is STILL in force (doesn't matter if they are using your mobile number).

 

Of course there are newer provisions but most people forget about this 1949 one.

 

CrappyQuest are just a mega pain in the but -- and I thiunk the main director is based in Luxembourg -- suspicious in itself for a UK "DCA" so do whatever you can to avoid paying these **** a single penny.

 

DCA's are all generally horrible -- but crappyquest is one of the worst.

 

Cheers

jimbo

[Blondmusic]

Ok. I drafted this letter last night. Can someone have a look to see if it is ok. Most of the letter was copied from another thread (thanks to Havinastella's thread on Cap One).

 

I refer you to my letter dated 9th of June 2009.

 

In that letter I made a formal request for a copy of the signed, fully executed credit agreement for the above numbered account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

You have sent me a photocopy of an application form which you purport to be the alleged "Agreement". This alleged “Agreement” is missing one or more of the prescribed terms. This makes the alleged “Agreement” invalid and therefore unenforceable.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed as such data is wholly inaccurate and in contravention of schedule 1, Part I (4) of the Data Protection Act 1998 ("Data Protection Act 1998") "Personal data shall be accurate and, where necessary, kept up to date"

 

Failure to remove the offending data will result in court action under Section 14 of the Data Protection Act 1998 to obtain a court order for the destruction of said data and compensation under Section 13 of the Data Protection Act 1998 .

 

Since you have no valid Agreement I insist that you confirm that the balance on the alleged account is set to zero, or else I will report you to the OFT for non-compliance and a likely penalty of £2500. Once the OFT have prosecuted I will request that you are not fit to hold a licence under CCA and request its removal.

 

I have also requested on numerous occasions in writing and on the telephone that you do not telephone me on the mobile number you have for me but you continue to ignore this. I would now like a copy of your Complaints Procedure forthwith.

 

The mobile number you are using to Telephone me on belongs to my employers and it is not to be used for personal calls. I have told you this repeatedly but you still continue to call me. I have requested to deal with this matter in writing only but you still telephone me.

 

I work as a Train Driver and I am not allowed to answer my mobile phone while driving a train except for work related matters. If I answer a telephone call from your company while driving a train and I am then involved in an accident then your company would be held responsible and would be prosecuted by law.

 

This is the last time I will tell you not to telephone me on my mobile telephone. If you continue to telephone me after you have received this letter then I will reserve the right to report your actions to the OFT, Trading Standards and my MP.

 

Failure to respond favourably to this letter within 7 days of receipt could result in legal proceedings being commenced against your company.

[themagician]

why did you start another thread,it makes following the progress alittle confusing as all the facts are not in one place.

[miss muppet]

Hi Blondmusic, the letter looks fine, I once had this problem when dealing with them for my daughter, I made a list of their telephone calls and then when they called again after I had told them not to, I advised them of the dates and times they had called and advised them I would inform the authorities, result - nothing since!!

[NailPost]

I don't see why you should tell them to stop again. You've already told them, in no uncertain terms to stop, have proper reason to do so and they are ignoring the request. Its now time to ask for their complaints procedure, make that complaint and see how they justify their actions. If they can't, or more likely won't, then step up the complaint to their regulaors.

 

It would also be appropriate to contact Ofcom and start making complaints about their actions to that regulator.

[UnitedFront]

Hi there

I believe that you could still get them under a Cease and Desist order -- the old Wireless Telegraphy Act 1949 is STILL in force (doesn't matter if they are using your mobile number).

 

Of course there are newer provisions but most people forget about this 1949 one.

 

CrappyQuest are just a mega pain in the but -- and I thiunk the main director is based in Luxembourg -- suspicious in itself for a UK "DCA" so do whatever you can to avoid paying these **** a single penny.

 

DCA's are all generally horrible -- but crappyquest is one of the worst.

 

Cheers

jimbo

 

Hi, I'm sorry to say that the Wireless Telegraphy Act 1949 was repealed by the Wireless Telegraphy Act 2006, s 125(1), Sch 9, Pt 1, as from 8 February 2007; meaning that it is no longer in force.

 

Hope this helps.

Cheers.

UF

__________________

I am a first year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. If you are in doubt, always seek professional legal advice from a qualified lawyer.

Edited January 7, 2010 by UnitedFront

[Blondmusic]

why did you start another thread,it makes following the progress alittle confusing as all the facts are not in one place.

 

I started another thread as Capquest will not stop phoning. They have sent my friend this in response to the previous letter which had the telephone harrassment letter. They also enclosed another CCA but this time they it is on 2 sides of the same page. I will post it all up.

 

 

 

 

Now what has interested me is the Terms and Conditions (the last image) as there is a line of small print under the title which i dont know if anyone can read but i have the document here so i will type it.

 

The small print says and i quote 'These terms are taken from clauses 8, 10 and 23 of the Terms and Conditions that you sign with us'

[Bazooka Boo]

I refer you to my letter dated 9th of June 2009.

 

In that letter I made a formal request for a copy of the signed, fully executed credit agreement for the above numbered account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

You have sent me a photocopy of an application form which you purport to be the alleged "Agreement". This alleged “Agreement” is missing one or more of the prescribed terms. This makes the alleged “Agreement” invalid and therefore unenforceable.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed as such data is wholly inaccurate and in contravention of schedule 1, Part I (4) of the Data Protection Act 1998 ("Data Protection Act 1998") "Personal data shall be accurate and, where necessary, kept up to date"

 

Failure to remove the offending data will result in court action under Section 14 of the Data Protection Act 1998 to obtain a court order for the destruction of said data and compensation under Section 13 of the Data Protection Act 1998 .

 

Since you have no valid Agreement I insist that you confirm that the balance on the alleged account is set to zero, or else I will report you to the OFT for non-compliance and a likely penalty of £2500. Once the OFT have prosecuted I will request that you are not fit to hold a licence under CCA and request its removal.

 

I have also requested on numerous occasions in writing and on the telephone that you do not telephone me on the mobile number you have for me but you continue to ignore this. I would now like a copy of your Complaints Procedure forthwith.

 

The mobile number you are using to Telephone me on belongs to my employers and it is not to be used for personal calls. I have told you this repeatedly but you still continue to call me. I have requested to deal with this matter in writing only but you still telephone me.

 

I work as a Train Driver and I am not allowed to answer my mobile phone while driving a train except for work related matters. If I answer a telephone call from your company while driving a train and I am then involved in an accident then your company would be held responsible and would be prosecuted by law. I would delete the above, their not interested in your life, only your money!

 

This is the last time I will tell you not to telephone me on my mobile telephone. If you continue to telephone me after you have received this letter then I will reserve the right to report your actions to the OFT, Trading Standards and my MP. And this one, it just sounds like them, Empty threats!

 

Failure to respond favourably to this letter within 7 days of receipt could result in legal proceedings being commenced against your company. And this one also.

 

They have received your formal request to not call you, they have continued to do so, this is Harassment, and should be reported to your local Police station, (not 999) as Harassment, if they tell you it is a civil matter, it isn't, ask to speak to an inspector if they are unwilling to deal with the matter.

 

One phone call from them will scare cr@pquest enough to stop ringing.

 

Speak with you telephone provider also, and use the malicious calls procedure, they will be able to help aswell.

 

And report them to the OFT and OfCom.

Contact us - The Office of Fair Trading

 

Ofcom

 

You need to be quoting this.

Telecommunications Act 1984 (c. 12) - Statute Law Database

 

Protection from Harassment Act 1997 (c. 40)

[Blondmusic]

Thanks for that BB. Its not me they are phoning its a good friend who i am helping. I will tell him to contact the cops and see what they say.

 

The thing is the phone they are calling belongs to my friends employer. My friend uses the phone in his job (on the railway) and Capquest are taking no notice at all.

 

Letter has now been edited.

[Bazooka Boo]

OK, I understand it now, takes a while, but I get there eventually

 

If they have been sent the telephone harassment letter, and they are still calling, he really should go to the Police, and report this harassment, they 'should' treat it as a crime, because that is what harassment is.

 

Is there any chance he can get a new phone off his employer? Or new number rather?

And depending on what type of phone it is, there are some pieces of software that he can download to stop these calls, a little bit like Truecall for mobiles.

 

Have you reported them and made a complaint to all the usual agencies?

[Blondmusic]

I dont think he will be able to get a new number but i will ask him about it. The phone he has is a very old Nokia 3310 (my spare after his works one broke) so he cant record the calls.

 

I am going to get him to report them cos it has got to stop.

[Blondmusic]

I am doing this on behalf of a friend of mine who is having problems with Capital One.

 

He got a credit card from them in 2003 and defaulted the same year when he could not keep up the repayments. The debt was then sold to Capquest who have not provided a valid CCA but thats a different story.

 

Anyway we sent a Subject Access Request to Cap One last year and i went through all the statements they provided to add up the charges. I worked out (using MSE's charges calculator) that they charged him £600 in Overlimit Charges at £20 each. I then added the interest at 8% per annum and it worked out at nearly £900 which would be very handy for my friend as his wife has recently left him.

 

They started adding the charges in September 2003 and kept adding them on until November 2004.

 

Anyway my friend got a letter back of Capital One (which i have posted below) and i think they are pulling a fast one

 

Does anyone have any suggestions on what we have to do next?

[Bigdebtor]

I have an IDENTICAL letter today. I was claiming interest at their high rate - narly 25% apr - not 8%. I think you were too generous.

 

I seem to remember a template saying - I want a TOTAL refund - not just your charges reduced to £12 a time. I am looking for this template right now and will let you know when I find it.

 

BD

[Blondmusic]

Thanks for that. I worked out they are only going to refund anything above the £12 charge which means my mate will only get £8 per charge back instead of £20. On the letter they say they cant refund all the charges as some were applied more than 6 years before we sent the letter trying to claim the money back which is fair enough as it is only 6 charges.

 

Can we claim back with the interest at 25% i thought it was only 8% per annum?

[Bigdebtor]

Thanks for that. I worked out they are only going to refund anything above the £12 charge which means my mate will only get £8 per charge back instead of £20. On the letter they say they cant refund all the charges as some were applied more than 6 years before we sent the letter trying to claim the money back which is fair enough as it is only 6 charges.

 

Can we claim back with the interest at 25% i thought it was only 8% per annum?

 

Blondy

 

I attach bits out of my reply going off today that you might want to put in.

 

1. I am not sure about the 6 year bit - and have reserved the right to go back for earlier claims if I get that advice. I think I saw something on CAG that earlier charges are reclaimable - but I want to get the first bit paid ASAP.

 

2. I am pretty sure you can charge interest as the same rate as THEY charge it. The 8% would be charged in addition if you won in court. Compounded monthly at 1.9034% pe rmonth this soon exceeds the value of charges - especially for the oldest charges.

 

3. You CAN claim the full charge (not £18 or £20 charge less £12) unless they PROVE their ACTUAL costs - which they never do.

 

See bits of my letter below for you to use as you like.

 

Tip my scales if they help.

 

BD - bits of my letter below for you to cut and paste if you want:

 

 

I note your comments regarding the Limitation Act 1980 and I reserve the right to take further advice regarding the possibility of making a claim for those default sums charged prior to six years ago. In the meantime, whilst not accepting that I have no longer any right to claim a refund of such earlier sums and accrued contractual interest, for the benefit of reaching an earlier partial settlement and to assist me in times of financial hardship, I have calculated the amount of charges together with contractual interest accruing since 1 January 2004 and now request that you return to me all charges imposed on this account since that date, totalling £XXX together with contractual interest of £XXXX making the total current claim of £XXXX (based purely on charges accruing from 1 January). Interest has been calculated at the contractual rates as shown on your statements and compounded monthly as per your standard practice. This figure assumes that payment in full is made to me on or before X February 2010 (next statement date) . Interest will continue to accrue on a daily basis until the required payment in full settlement has been received from you.

 

As previously stated I believe I am entitled to have such default sums refunded in their entirety as I do not accept the charges imposed reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate. You refer to the Office of Fair Trading’s report of April 2006 in which I understand the OFT said, in plain language, that it would not launch a specific investigation on any card companies with charges lower than £12. It did not concur with your assertion that a charge of £12 was fair and lawful as that would be for a court to decide.

 

The report continues along the lines that a contract term is likely to be unfair if it requires consumers to pay more as a result of a default than the court would order them to pay if they were sued for breach of contract. This means that a default charge should not exceed a reasonable pre-estimate of the administrative costs that the consumer ought to have realised would be likely to be incurred by his or her card issuer in dealing with defaults. What costs were in the reasonable contemplation of the consumer would be a question for the court to decide. In general terms a default charge may include postage and stationery costs, and also a proportionate share of the costs of employing staff and of maintaining premises and IT systems in order to deal with defaults of the same kind. The precise level of any particular fair default fee, however, would depend on the business circumstances of the particular credit card issuer.

 

I would be prepared to consider a representation from you to reduce the amount claimed by the true costs to your business of the above elements accompanied with evidence to support such representations. In the absence of such evidence being provided I repeat my claim for a full refund of all the late payment fees, over limit fees and any other fees which you have described as “default” fees and have applied to my account since January 2004, together with contractual interest – as detailed in the attached spreadsheet.

 

 

Good luck - keep us all posted on progress via this thread and I'll do likewise.

 

BD

Edited January 28, 2010 by Bigdebtor

[the_shadow]

Following may help in any letters you send back...

 

Your letter indicates you believe your charges are in line with the Office of Fair Trading Guidelines. In order to make it clear to you that OFT did not give you permission to charge £12.00 I include these quotes from OFT“We are not suggesting that default fees should be set at £12, and a court will certainly not consider that a default fee is fair just because it is below the threshold”. “We consider that a contract term is likely to be unfair if it requires consumers to pay more as a result of a default than the court would order them to pay if they were sued for breach of contract. This means that a default charge should not exceed a reasonable pre-estimate of the administrative costs that the consumer ought to have realised would be likely to be incurred by his or her card issuer in dealing with defaults”.

 

In order for you to charge me £12.00 you must demonstrate to me that it cost Capital One £12.00 by you receiving my payment xxx days late.

 

English Law is very clear; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC 79.

 

I see BD has already put in something for the limitation act also so wont add anything

 

S.

[Bigdebtor]

Shadow

 

Thanks for the extra bits. Can you point us to anything about reclaiming beyond 6 years. I am sure I saw something in one thread or in a template but can't locate it rigfht now.

 

BD

 

(I've tipped your scales again - not that you seem to need it now! .

[the_shadow]

arrgh sorry thought I read in the letter in regards limitation act... ok..

 

 

Following taken from a claim by Noomill against Barclaycard... [well done Noomill, Barclays must hate you now ] This being in reference specifically to PPI, so you'd need the event that started the bank charges claims and count 6 years prior to that.

Limitation Act 1980

26. The Applicant is aware of the Limitation Act 1980 and the Time limit for actions founded on tort, and is aware that the Respondent may wish to base his defence on this.

“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

　

27. The Applicant asserts that this limitation is not relevant in this claim due to the cause of action being redress for a mistake by the Applicant caused by the Respondent’s deliberate concealment of the facts, and that the Applicant’s right of action has been deliberately concealed from him by the Respondent. The Applicant asserts that he could not, with reasonable diligence, have discovered it before 2006. This being the date of publication of the Office of Fair Trading report into PPI mis-selling, and so the period of limitation should not have started to run until that time.

　

　

　

28.

s.32.--

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

and the other powerful bit case law important bitty stuff

 

s.32 Limitation Act 1980

 

It essential to have section 32c in your Pocs if you are relying on it and if CapitalOne have issues with it then seek a hearing to determine.

 

The case law for this is

Kleinwort Benson -v- Lincoln City Council & Others

s. Edited February 1, 2010 by the_shadow

[PGH7447]

subbing, having the same with a cap1 debt held by robbingscum way, at present they owe me more than I owe them - stalemate:D