Yes i do have a default they need to remove.

I am going to send the above letter and await their outcome

Hi folks

Could someone please have a look over the following letter which I am going to send in repsonse to Cap One offer. Just was wondering what I should state about issuing judgement and their position as they did not submit a defence in time?

I am in receipt of your letter dated 10th December 2008.

Please be advised that I will not be accepting your offer and therefore my court claim still stands for the full charges, contractual interest and court costs. I am enclosing with this letter an updated schedule of charges as of today’s date to update you regarding interest that is currently accruing daily (£2.10 daily) and will continue to increase until this matter is settled.

Once again you are denying that these fees are unlawful and that they are based on the costs that you incur. I once again invite you to provide evidence of your actual losses or pre-estimate of costs in relation to the account breaches. Your silence on this matter leads me to believe that you will not disclose your costs for reasons that remain unknown. If you choose to continue not to address this issue, you will be requested to provide this information in court, I have put it in my Particulars Of Claim (POC) and can be addressed in court.

As my Particulars Of Claim state. I am claiming contractual interest (compounded daily) at 31.54% APR. which is the rate that has been applied to my account and is the most current interest rate applied according to my statements covered by this claim. The claiming of this rate is based in equity and a legal requirement for fairness and balance. As there is an express rate of interest in the contract for the benefit of the bank when it lends money, in my view there is an equivalent term which benefits the customer when the bank owes the customer money.

You state that my calculations are incorrect, I have checked over these calculations and they are not incorrect. Please note that I am claiming contractual interest compounded daily. I am aware that Capital One has been paying out on contractual interest (compounded) - for numerous claims and I shall not hesitate in providing these cases to the judge.

My POC also further states that ‘in the alternative’ should the court find that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984. Now having gone ahead and issued this claim I feel it is now for the Court to decide on the interest applicable and not Capital One. As such my claim still stands as before and I will be informing the court to that effect.

I think you have been presumptuous in assuming that I would accept your proposal as settlement. I have not accepted this amount as full and final settlement and when I receive the cheque I shall return it to you. In no way have I formally accepted this offer either verbally or written and you have no such proof to this effect . To make my position clear no refund is to be put onto my card and if such action has already been done without my authority then please be advised I am not accepting this and wish you to remove these funds.

I would also like to point out that you have not addressed the issue of removal of prejudicial information and the removal of the default notice as outlined in my Particulars of Claim.

I have checked with the court and no defence has been submitted by yourself as was ordered to do so by District Judge Butler by close of business on 15th December 2008. As such I am now in a position to issue judgement against you in this matter.

Should you wish to settle my claim in full, then please forward the balance of the claim £2636.47 to date, without conditions, and organise for the removal of default.

I trust this clarifies my position that court action will continue and your offer is not acceptable to me.

Bump anyone?

Also they have not submitted a defence, the deadline was yesterday

I have received a letter today from Cap One which says:

Capital One has acted in accordance with the terms and conditions of your credit agreement throughout this matter and it is colear you have no claim against Capital One. After revieiwing your request for £1465.99 (This was calculated CCI using the vampiress spreadsheet from this site) for interest incurred I can confirm that your calculations are incorrect. All default sums charged to any account are always charged at the purchase interest rate. The total amount of purchase interest we have ever charged to your account since it was opened is £333.17. This amount includes the interest on all of your purchases and only a very small protion of this figure has been charged on default sums. On the basis of the above, I cannot agree to the proposal of refunding the sum of £1465.99 to cover the interest incurred.

I am prepared to offer, without any admission of liability, a refund of the default sums totalling £1144. I'll refund the total amount of purchase interest charged to the account in the sum of £333.17 and £246.83, which is the 8% you are entitled to claim under Section 69 of the County Courts Act 1984, I'll also refund the subject access request fee of £10. This brings my total offer to £1734, this will pay off your outstanding balance and I've arranged to send you a cheque for the remainder of £438.35 which you should receive within 21 working days. (Can you ask them to pay the whole amount to you rather than clear your account?)

These refunds are made purely as a gesture of good will and we will now defend this claim on the basis we have refunded the correct amount.

I hope I have explained things clearly for you and we can move on from here. I would finally request that you contact the court to confirm the settlement and discontinue the claim. We have also written to teh court to confirm that we have paid in full.

Elllie Renshaw

I would be grateful if someone could point me in the right direction, are my calculations for CCI correct? and should I decline this offer? Also they have mentioned nothing about default removal?

Is this just a last minute scare tactic to try and make me settle for less?

Any help much appreciated

I have still not heard a thing from Capital One and they only have until Monday 15th to submit their defence. Is this the norm to leave it right til the last minute? and do they normally submit a defence?

Was kinda hoping for a nice xmas bonus:D

Brownie24:D

After sending the above letter to my local court I managed to get the stay removed and now Capital One have until 15th December to file their defence

Derby County Court have stayed my credit card charge claim against Capital One! I thought that credit card charges were not covered by the test case and could therefore proceed normally, can anyone point me in the right direction as to how I should repsond to this stay?

 

Thanks

Bump does anyone know the answer to this?

Bump to my above query. Do you think the following letter would get this stay removed?

Dear District Judge

I respectfully object to the proposed order of a stay in respect of the above claim vs. Capital One Bank (Europe) PLC. I respectfully ask that the stay be removed on the following grounds;

Ø The claim is in respect of Charges applied to a Credit Card account. These claims are not concerning the recovery of current bank account charges. The claim is therefore not effected by the outcome to the current OFT test case and should be allowed to proceed to its natural conclusion through the courts.

Ø The Office of Fair Trading have already ruled on Credit Card charges. On 5th April 2006 OFT confirmed that Credit Card charges were a particularly high level of penalty and were considered to be unfair by the OFT and therefore presumed to be unlawful in the absence of specific proof to the contrary.

Ø These claims concern unlawfully taken credit card charges and erroneous default markers placed on file with various credit agencies.

Ø Credit Card charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Credit card charges could potentially be decided solely on the “penalty” issue of common law, without reference to the UTCCR which the OFT case focuses on. Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provision in Director General Fair Trading V First National Bank plc [2002] 1 All ER 97

I am aware of Credit Card claims progressing through other County Courts and if you require any further information or evidence in this matter then I will happily supply this for you.

I await your response in this matter.

Bump

Derby County Court have stayed my credit card charge claim against Capital One! I thought that credit card charges were not covered by the test case and could therefore proceed normally, can anyone point me in the right direction as to how I should repsond to this stay?

Thanks

Help and advice please.......what a cock up by local court

Both me and my partner took our claims to our local court mid September with completed fee remission forms due to low income and were told that we should hear something within 5 days. However a couple of weeks later still we'd heard nothing so I called them to find out what was happening to be told that the fee remission had been granted and that i should receive a notice of issue within next few days.....but still we heard nothing so last week i called them back to chase things up to be met with a whole lot of confusion and no record of our claim on their system

Anyway after several phone calls and speaking to various supervisors they finally found our records and it turned out that although the claims were issued on 17th September the notice of issue was never produced and the claims were not served on Capital One due to a member of staff getting them confused with the stayed bank charges claims and they were just filed away in a 'pending file!'

However they have now served our claim on Capital One on 29th October but they have referred this to the District Judge who has directed that these claims should be treated as bank charge claims and stayed due to the test case being issued:eek: I thought that credit card claims were not covered by this and could go ahead ? Can someone please point me in the right direction as to how I should respond to this?

By processing my claim in Sept I had been hoping to get the money back in January but now my whole claim appears to be on hold indefinately and whata delay there has been due to the courts incompetence

Help please

Hi All

This is going to be my second claim with NatWest and just wondered if i just use the standard prelim letter from the templates library or should I add a paragraph anywhere about my previous claim?

Brownie 24:D

Just an update.......got complete fee remission based on low earnings, only wish I'd known about this sooner, kept putting the claim off as I did not have the money to pay the court costs!

Just waiting now for a response from Cap 1.

Well I have finally submitted by N1 claim form and here is what i have included - hopefully it is all present and correct and it may be of interest of to anyone who is about to take them on. I just wanted to check over my restitution argument for claimining compounded interest - If anyone does spot any blinding errors then please let me know

IN THE DERBY COUNTY COURT

BETWEEN

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around March 2004 whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no ************ ("The Account").

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

Summary

5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment was returned. (Full particulars are set out in the attached Schedule 2).

6.The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account plus interest levied thereon.

The Charges

8. The standard Terms of the Agreement in substance provided as follows:

a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment specified on the monthly statements of account by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £20.

Penalties

9. The Charges were payable on breach of contract by the Claimant.

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

The Regulations

12. At all material times the Claimant was a consumer within the Regulations.

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that, contrary to the requirement of good faith, they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

(2) The Charges were a penalty for breach of contract.

(3) The Charges exceeded the costs which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

15. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the published tariff of charges.

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

17.The Defendant wrongly applied Charges to the Account totalling some ****** between 10 June 2004 and 27 November 2007 and interest levied thereon of £*****. Particulars appear from the attached Schedule 2.

18. On 11th May 2007 & 20th June 2007 the Claimant demanded repayment of the sums wrongly applied.

19. The Defendant has not repaid them or any of them.

Compound Interest

20. The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 4 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

21. Therefore for complete restitution to occur the Claimant seeks an award of compound interest at the accounts annual interest rate of 31.54% per annum (this is the rate applied by the Defendant to the Claimant’s account). The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.

And the Claimant claims:

(1) Payment of the said sum of £860.00.

(2) Compound interest at an annual rate of 31.54% from the date of payment of the Charge to 2nd September 2008 in the sum of £****** and at the daily rate of £***** until judgment or sooner payment.

(3) Court costs (if applicable)

(4) Subject Access Request fee of £10 paid to the Defendant by the Claimant.

(3) In the alternative that the court is not minded to award compound interest, Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £222.69, and at the daily rate of £0.24p until judgment or sooner payment.

(4) Claim for the removal of prejudicial information.

a)the removal of any prejudicial information which the Defendant has passed to third parties in relation to the Account and in particular the removal of the incorrectly recorded Default Notice, registered on 11th May 2008, from all credit reference agencies since this was caused solely by the level of disproportionate penalty charges. The Claimants request is made under the Data Protection Act 1998, section 14, which gives the power to the Court to order the removal of inaccurate personal data.

I believe that the facts stated in these particulars are true.

Dated this 2nd September 2008.

Signed

………………………………………………………..

In my POC I will need to add a section about default removal. I have already send them a letter requesting a true copy of CCA and in this letter I stated - Be advised, the Consumer Credit Act 1974/2006 makes very clear that, a default may only be issued for breach of a regulated valid agreement. Further, that disclosure under the Data Protection Act is not, and cannot be processed without express consent.

I also made reference to the Data Protection Act - so I will have to use this in my POC, can anyone point me in the direction of a POC that also covers these points for default removal?

Thanks

Brownie24

Thanks everyone for the help and comments, feeling more postive now. I have phoned the court and asked them about the fees they told me that I would have to apply and fill out an exemption form and show them copies of my wage slips and bank statements, so i am off to do this today.

I have also spoken to Fredricksons and stoppped paying them, I have informed them that this is on the grounds that Capital One have been unable to provide me with a compliant copy of the CCA and I will not make any more payments until they do so and they have agreed to put a hold on my account for a week - so maybe they are beginning to realise that Cap One don't have a leg to stand on......fingers crossed.

Will keep everyone updated

so there ought to be a Scan "join" somewhere in the middle. But that may not be visible, as the Scan is pretty poop and over-exposed to boot.

 

There is no physical way these were ever the same Document.

 

That's what I thought there is clearly two black lines running accross the document - as if it may have been cut and pasted!

1) This is not a Regulated Consumer Credit Agreement...it's an Application Form. If you can read it, there will be text saying "IF" they grant it, or "I APPLY FOR" etc.

 

3) It's possible the Terms are not the ones applicable when the Card was first taken out, but can you even read them?

It is def an application as it says " if my application is accepted" and "by signing this application"

On the covering sheet of the terms & conditions it even says that these are the current terms of my agreement with them!

Is there a reason why you haven't done so.

 

Rgds Budgie

The only reason being that I have not physically had the money. Partner lost his job, have a young baby and mortgage arrears so every spare penny has to go towards paying this off. Also because I have left it so long i am worrying that this will go against me? Should I start the process again? Although I still view it as being in dispute Capital One stated they do not and that is why they have defaulted me!

Just worked how to upload images so here goes, would be grateful if someone could tell me if they have complied? and what letter i should send next?

IMG]http://i326.photobucket.com/albums/k435/brownie24_photo/capitaloneletterpg2.jpg[/img]

IMG]http://i326.photobucket.com/albums/k435/brownie24_photo/termsofmycapitaloneagreement2.jpg[/img]

I sent a letter similar to the one above on 2nd July and also requested a CCA.

I have received a reply from capital one and just want to check if it is correct, how can i upload my scanned images for people to have a look at?

Brownie24:confused:

Does anyone have an email contact for anyone over at Capital One?

In particular Ellie Renshaw? Is she still working there and is she the one who i should send a final request to before issuing court proceedings? My claim has gotta kinda complicated now:confused:

Hi

Thanks UK.

I was also thinking of sending a letter along the lines of :

Does this sound ok? and can you suggest anything else to add to add more weight?

Dear Ms Renshaw

Request for a True Original Copy of Signed Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974.

Account in Dispute

On the 11th May 2007 I wrote to you requesting refund of the penalty charges which you have levied from my account. On 23rd May 2007 you responded to this letter by offering me a partial settlement to which I respectfully declined and asked that you return to me all charges imposed on this account. As I have received no response to this matter I believe this dispute to be open and ongoing.

During a telephone conversation with one of your colleagues on ?????? where you were demanding repayments on the account I asked that before I was to make any further payments or come to a payment agreement you furnish me with a true original copy of the Signed Credit Agreement to which the operator assured me that he would send a copy out to me that day. However I have to date received no such document.

My requirements

I am today requesting a true, signed original copy of any credit agreement that exists in relation to the above account. This is a legal request for information under Sections 77/78 of the Consumer Credit Act 1974. The statutory fee of £1.00 is enclosed herewith.

Whilst this account is in dispute, and remains in default – I should remind you that you may:-

·Not demand any payment on this account, nor am I obliged to offer any payment to you.

·Not add any further interest or charges to this account.

·Not disclose or pass on this account to any other party/agent.

·Not register any adverse payment history regarding this account with any Credit Reference Agency.

·Not issue a default notice related to this account.

Due to my outstanding requirements I am shocked that you have issued me with a statement of default and respectfully ask that this be removed immediately. Be advised, the Consumer Credit Act 1974/2006 makes very clear that, a default may only be issued for breach of a regulated valid agreement. Further, that disclosure under the Data Protection Act is not, and cannot be processed without express consent. This consent is expressly withdrawn until such time as a true copy of the alleged executed credit agreement is provided. As no such properly executed, enforceable agreement has yet been proven to exist, any attempt at serving default, or disclosure of my data to any third party, will have no legal standing.

I await your final response to this complaint within 14 days of this letter, and would ask you include your proposed actions in the event that you are unable to comply fully with this final request.

Oooohhh what a nightmare!

Having managed last month to scrape some money together last month to avoid my account being closed and a default being issued I have not been so fortunate this time!:o

My account is now closed and a statement of default officially issued Could someone point me in the right direction please? I am at the stage with Crap One where I need to issue my N1.......this is severely overdue should have been done last year!..... but money has been soooo tight I have not been able to afford it as yet. However now being in this sticky situation I need to take action against them. I was of the understanding that while my account was in dispute they couldn't issue a default.

Now this weekend I am going to issue proceedings against them but also now need to get the default removed......any advice on how I could do this? and is this likely to be successful?

Brownie24:(

Well I managed to scrape together enough money to pay Crap One so as to avoid getting a formal default registered, thought this would be much easier and less risky than trying to get a default removed.

While on the phone I conveyed my position with reference to reclaiming the fees on the account and informed that i would be commencing legal action againt them. On both my prelim and LBA i have included CCI claim as well but after reading some posts on here it seems they are not paying this out now, is this right? Also could someone point me in the direction of the case of restitution which I beleive may swing the case for reclaiming CCI?

Brownie24

Bump to my last post and also........

I decided to call Crap 1 today to see if they would put a hold on my default until they furnished me with a signed copy of the CCA.

Initially spoke to call centre in India but demanded to be put through to someone in England, who may have a better understanding. They gave me a phone number and I managed to speak to someone in England who told me that they would get the CCA posted out to me today, we'll wait and see. Anyway I was then transferred to collections in England and asked if they could put a stop on the default until I was in receipt of this info, they told me that there was no way they would do this and said that a formal default would be issued next week unless my account was brought fully up to date. I argued the fact that i was disputing the fees on my account and that i would be taking legal action against them for these very soon (just need to try and scrape some funds together).

Anyway my question in short is can they still formally default me if a) the account is in dispute and b) without me making sure they have the correct and full signed CCA? If not can anyone point me in the right direction as to what letter I should send to them and what consumer law can i quote them in order to argue my point?

I need to fax some repsonse to them on Monday, I was given a contact name in their legal team, in the hope of them halting the default.

Any help/advice much appreciated

Brownie24:-|

Oh what a mess!

After such a promising start....finally getting to grips with CCI thingy and all that I had sent my prelim and LBA but have still not yet submitted my court claim.....due to lack of money! Partner lost his job last year and money has been v tight due to also having a little baby, so money has had to be spent on other things. Also due to lack of funds I have not made a payment on my Crap one account for a couple of months....oooopps!

Well now I have a notice of default served!!! My overdue amount being £479.33 (however this is mainly made up of their charges) I have to pay this amount by next week or I will lose my account and have a formal default notice on my credit file!!!! Now I really need to take some action against this, Can anyone advise with a letter of response?

Please help, don't want my credit file to be more adversley affected!

Brownie24:confused: