Capital One Reconstituted Copy of Agreement

Squirrelnutkin · 7 October 2010 at 12:54PM

Hi,

I have been sent a "reconstituted copy" of my original agreement by Capital One following my CCA request to their DCA Capquest. It is basically a copy of a "Short Application form" with a Credit Card Agreement tagged on at the bottom. What do I look for to determine if it is enforceable?

They have also sent a copy of their T and Cs both then and now.

In their letter they state that:

"For the avoidance of doubt the signature page provided is a scanned copy of the signature page of your original agreement only. Included on the reverse was an extract of the terms of your agreement, which can be referred to in the reconstituted agreement enclosed. Prior to signature you were provided with a full copy of the original terms of your original agreement to keep and were sent a further copy of your original agreement with your first credit card.
As we have complied with our obligations under S78, we will not be entering into any further correspondence regarding the provision of copy agreements. Your agreement is enforceable and we will continue to treat it as such."

It appears that I already had a Capital One card when I applied for this replacement Platinum one to which I transferred the balances of 3 other credit cards as it offered a better interest rate. The application is dated 1998 (so debt is 12 years old). I became very ill with cancer two years later and have been unable to return to work, so have been paying token payments for 10 years.

Any advice much appreciated.

king100 · 7 October 2010 at 12:57PM

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)
PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE
CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations
(If you just want to find out, skip the bits in between the stars it’s just some extra information)

**What do we mean by unenforceable?
In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.
Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

How does unenforceable differ from enforceable with a court order only?
When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.
When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

The Pescribed Terms are these

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement
D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D Apply

For a Restricted Use Debtor Creditor Supplier

Where the dealer is the supplier and the creditor is the one providing the finance. The money can only be used for the purpose it is given. There is no interest on the purchase (the cash price is the same as the total price)
And there is no advance payment

A is applicable

For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions

A and B apply

For a Hire Agreement

B is Applicable

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.
Please note that these Prescribed terms where not changed in any way by the [URL="tel:2004/1482"]2004/1482[/URL] Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

king100 · 7 October 2010 at 12:59PM

Can you scan a copy of your agreement taking out the personal info.

Host it on tiny pics and post link here.

Squirrelnutkin · 7 October 2010 at 1:08PM

Thank you-I will get one of my sons to help me do that later (useless on the PC).

It would appear they have only sent me a copy of my application-there is none of the information on there that it appears should be there from your post.

king100 · 7 October 2010 at 1:09PM

If thats it then invalid.

I will pm you

livi.till.i.die · 7 October 2010 at 9:33PM

I have also wrote off to Capital One asking for this information as they have placed a Default on my account for no reason. To date they have not informed me why. When I wrote to Next they sent me the EXACT sline that Capital One sent you. They told me they have complied with my request even though it was not my original agreement or my signature. They state that they are only obliged to send me a copy of what I would of signed.......???????

Capital One Reconstituted Copy of Agreement

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