Thread: Capital One wont refund all charges

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?

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?

Originally Posted by 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?

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

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.

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
(c) 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.

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

to be honest these are small fry and I cant be arsed with them - I just get the enjoyment out of their empty idle threats

Originally Posted by Bigdebtor

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

To be honest we are not really bothered about the charges more than 6 years after we made the claim. My mate should still get a fair amount of money out of it which would really help him out at the moment.

Thank you so much. My friend could do with the money since his hours have been reduced at work and his wife left him paying all the bills.

Blondy ( BTW are you male or female?) - body of my letter attached. I would appreciate other CAGGERs reviewing thsi and any constructiove comments gratefully received.

BD

Dear Cr*p One

Thank you for your letter dated XX January 2010 offering me a refund of £XXX plus interest of £X.XX in respect of the excess over £12 for default sums charged to the above account and I respectfully decline this offer. I note your comments regarding the limitation act 1980 and I would draw your attention to section 32 of the Act as outlined below:

(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
(c) 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.

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.
· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from late 2000 when you first begun to impose such unfair default charges.

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. 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”.

The 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.

In order for you to charge me £12.00 (or any other smaller sum) you must demonstrate to me that it cost Capital One £12.00 (or the smaller sum proposed) by you receiving my payment late or my going over my credit limit. To this end I would be prepared to consider a representation from you to reduce the amount claimed by me by a deduction reflecting 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 which you have applied to my account since September 2000 together with contractual interest at the contractual rates shown by you in your monthly statements - as is my legal entitlement – all detailed in the attached 2-page spreadsheet.

I had previously calculated the amount of charges together with contractual interest accruing from the imposition of the first default charge in September 2000 until X January 2010 and I have now recalculated these based on an anticipated payment date of X February 2010. I now request that you refund to me on or before that date all charges imposed on this account, totalling £XXX.00 together with contractual interest of £XXXX.XX making the total currently claimed £XXXX.XX

Interest has been calculated at the contractual rates as shown on your statements and will be continue to be compounded monthly as per your standard practice. As stated earlier the figure claimed assumes that payment in full is made to me on or before X February 2010 and interest will continue to accrue on a daily basis until the required payment in full settlement has been received from you.

I note your comments about maintaining minimum payments in the meantime but this requirement does not apply since the amount due to be refunded by you is considerably in excess of the balance on the account as reported in your most recent statement. Based on this fact please advise Debitas that pending the required payment by you, this account should be regarded as being in dispute and instruct Debitas to cease contacting me by telephone, letter or by personal visit pending satisfactory resolution as outlined above.

Thats fantastic. Thank you so much. I will make sure that letter gets sent recorded delivery as soon as possible.

I am a woman by the way and my picture is of my 1 year old German Shepherd called Sheena.

My friend (who i am doing this for) is a workmate of my boyfriends who needs as much help as he can get. Just to get this straight, i have to add up all the charges, then add the interest rate charged by Crap One (which is 29.9% according to the paperwork i have) then add 8% interest per year to that amount. Is that right or wrong? If its wrong then please tell me the right way to work it out.

Hi,
I have seen that Crap1 don't normally settle until you file at court.

I do think that you can't add the 8% until you file as that is statutory interest.

You can calculate your charges using their rate and compound it (loadsamoney )

Thanks for that. I will make a start on it this weekend or Monday at the latest. If anyone has got a link to the spreadsheet i would be realy grateful. I know how to use them after doing a course at college so anything you want to know about Office Word, Powerpoint, Excel or Access then i am the woman to ask!! I also know how to screen print anything that displays on your monitor and how to print it out.

Here's some. Whether they are any use, I don't know.

http://www.consumerforums.com/resour...n-spreadsheets

Me and spreadsheets. ARRGH. I passed Clait1 but for the life of me I can't remember a thing anymore