Can someone tell me if I have a case because I'm considering giving up

[PatsyTheCat]

Hello,

 

I've been trying to claim some charges back from Barclay's, Captial One and Citicard. I don't seem to be making any progress with any of them and I must admit I'm considering just giving up.

 

The one that I'm finding the most confusing is Capital One. They've charged me about £300 in charges and also registered a default against me for non-payment.

 

Obviously the money is one factor but what I really want is the default to be removed. I've read thats its possible to force them to remove it under certain circumstances but I can't figure out whether this applies to me.

 

My situation is as follows:

 

1) When I opened the account I had a credit limit of £200. I spent this while on holiday but because of the exchange rate it took me over the limit and hence created the first wave of charges.

 

2) Because of the above, instead of my first payment being just the minimum £20 they insisted that I paid the minimum + anything my account was "over limit" by. This meant my first payment needed to be about £50 rather than £20 which I could not afford.

 

3) Things spiraled downwards from here with more charges being added on each month for the overdue account.

 

4) Unfortunately, instead of contacting them to try to rectify the issue I stuck my head in the sand and tried to avoid it. After a number of months the amount I owed them reached £504.

 

Why I'm concerned that I may not have a case that I never made any payments on the account all. Obviously this was because I couldn't afford the payments due to the charges but I didn't contact them to resolve the issue. Does this void my case for claiming back the charges and also removing the default?

 

I have written them a number of letters asking for a full refund, plus a true and signed copy of the default notice and for the default to be removed due the fact that its only there due to the charges. I've now had a response to my LBA saying that they are not obliged to supply a default notice but can confirm the date that its was issued. They've refused to remove the default and have offered me £96.

 

What should I do?

Do I have a case for default removal if I go to court?

 

 

If anyone has any advice I would be very grateful for it because I'm feeling very nervous about the whole process and need to know I'm doing the right thing.

 

Thanks for reading,

 

PatsyTheCat

[surprise]

I would get a Mod to move this post to Capital One where you will get more help.

 

Yes it is worth carrying on with but it can take months. I started dealing with mine in March and its still going on but I'm not giving up.

 

One thing is not clear whether you have got all your statements and whether you have done a SAR. If not, then you will need to do this, that way they should produce everything that they have on you.

 

Good luck.

[standingupformyself]

I'm not sure about the possibility of removing the default, as you say that you did not pay anything at all. I wonder if it would work on the principal that should you have paid £20 each month (the amount you mention, without the charges) you could argue that the default should not have been there, on the basis that your payments were made when they should have been.

Sorry to be negative there, but having said that someone else could correct me.

However the charges are a different matter.... Have you sent the SAR request to Cap 1 yet? Your case here, regardless of the fact you have not yet paid anything to them, is surely no different to anyone elses, you should be able to persue Cap 1 for all the charges, plus the interest they charged you, and then be able to bring the balance down to the original £200 ish.

Good luck, it takes a long time, but dont give up! xx

[PatsyTheCat]

Thank you so much for the replies and help with this.

 

To confirm a couple of things up:

 

I paid them everything they said I owed them (albeit late) this was about 2 or 3 years ago.

 

I've done the S.A.R - (Subject Access Request), Prelim and LBA and also requested a true and signed copy of the default notice on a number of occasions.

 

If I don't have a case for default removal due to "unlawfully applied charges" do I have one as they will not supply a copy of the default notice? As I said previously I've asked if they will supply me one and they've said that they're not obliged to. They haven't said whether they have or have not got one, but I have a felling that if they had one they would have sent it to me.

 

Does anyone know where I stand with this because if there is no chance of getting the default removed then I will probably just accept the offer. If anyone has any advice on this it would be appreciated.

 

 

P.S If there is a Mod listening could you move me to the Cap1 area please?

 

Thanks

[surprise]

PM one of them to move it for you.

They should provide you with a copy. have you checked with the CRA's to see that they have actually put one on your record. Also, you will finish up taking legal action, Cap One always seem to settle before the court date, You can make the default removal part of your POC. Don't accept anything less than they owe you.

[callumsgran]

Have you asked for or received a CCA?

You may find you have an unenforceable agreement whereby they cannot default you and if they have then you can insist on its removal

[PatsyTheCat]

Have you asked for or received a CCA?

You may find you have an unenforceable agreement whereby they cannot default you and if they have then you can insist on its removal

 

Could you please clarify what a CCA is for? And how do you think I should move forward.

 

Asl always thanks for your guidence on this x

[midge61]

HI

 

I'm in a smilar position.

 

They are not obliged to give you a copy of the default notice as they dont keep them. They will send a copy of the standard one not specfcally yours though.

 

The cca means that you can send a section 77-78 request for a true signed copy of your agreement and they have 12 working days to supply it or they are in default. After a further 30 calendar days they commit an offence.

 

If they cannot supply a copy of your agreement the debt then becomes unenforceable but still exists.

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

 

Letter N is the template.

 

Cap one pay up the charges soon after recieving the court claim but you must include the removal of the default in it

 

Did you actually recieve a default notice and a statement of default from them?

 

Hope this helps

[zootscoot]

Thread moved to Capital one forum

[WendyB]

I'm not sure about the default removal, you would need to include it in your claim when you file at Court. i think you might have a case for removal if the default was mainly made up of charges. UK Aviator will probably know more about this.

 

However, with regard to the charges, I personally would not accept their meagre offer. They do this to everyone in the hope you'll just go away. If you file a claim in court for the charges they will pay up. If you still owe them money, then they'll credit it to your outstanding balance, if your balance is nil (didn't you say you'd paid it all off?) then they'll send you a cheque.

[Fully_charged]

Dont give in......Capital one try to get you to....it took a while for me to get back all my charges and now I am taking them to court for default removal......

[ukaviator]

Hi Patsy the Cat

 

You should go after the charges and default removal together as a package. If you file a claim with the court, as it's a credit card claim, you should be able to get both if you can prove that the charges put you into that default.

 

Looking at your posts above, you have followed the correct procedure and they have offered something. It may be that you have filled in an Application form for credit, Capital One did this for years, which is an unenforcable agreement. It may be worth sending of for a CCA which will cost £1. This is a request for the original agreement Consumer Credit Act, and they have 12 days to supply you with the paperwork. If they fail to do this, then they in default. The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. They do not need to take any further action to enforce the debt. A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

If it turns out that your agreement is ok and is enforcable, then file an N1 with the local court. Don't go the online route, as cases are being stayed automatically. Keep the charges and default removal together in one package. Don't let them settle for just the charges refund on it's own.

I would also apply some interest in your claim, we can work on that later on. Fisrt of all the CCA request is what you need.

 

There is a link here for you to read up on:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/83035-guidelines-requests-original-agreement.html

 

uK

[PatsyTheCat]

Thanks for all the help guys it really is greatly appreciated. Responses below as I must admit I'm still very confused:

 

They are not obliged to give you a copy of the default notice as they dont keep them. They will send a copy of the standard one not specfcally yours though.

 

I read on a couple of threads a while ago that if they could not supply a true and signed copy of the default notice then I could force them to remove the default. Has this now been found not to be true or did I get the wrong end of the stick in the first place?

 

The cca means that you can send a section 77-78 request for a true signed copy of your agreement and they have 12 working days to supply it or they are in default. After a further 30 calendar days they commit an offence. If they cannot supply a copy of your agreement the debt then becomes unenforceable but still exists.

 

What does this mean from my perspective? If it becomes unenforceable and they are in default how does this affect my case? What does it enable me to do?

 

Did you actually recieve a default notice and a statement of default from them?

 

I don't believe so, no.

 

If you file a claim with the court, as it's a credit card claim, you should be able to get both if you can prove that the charges put you into that default.

 

This is where I'm not sure where I stand. I wasn't able to make the minimum payment because they had applied the charges which increased the minimum payment value so much. But... I didn't actually make any payments at all because I couldn't meet that minimum. Could it not be argued that I could and should of paid something ie the minimum before the charges were applied?

 

For instance the first payment should have been £20 but because of the charges this went up to £50 which is why I couldn't afford to pay it... but I didn't pay anything all because I couldn't afford the £50. Presumably they will say I should of paid the £20, and because I didn't, thats why I got the default. My argument would be that had they not have applied the charges I would have been able to meet the minimum payment - But I'm not sure if this holds water.

 

It may be that you have filled in an Application form for credit, Capital One did this for years, which is an unenforcable agreement. It may be worth sending of for a CCA which will cost £1. This is a request for the original agreement Consumer Credit Act, and they have 12 days to supply you with the paperwork. If they fail to do this, then they in default. The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. They do not need to take any further action to enforce the debt.

 

O.K

 

A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

If I'm not able to take any action because of this why is it worth while? Does it mean the default becomes void? Or the whole agreement is void? If the latter, what does this mean considering I've already paid them the money I "owed" them?

 

If it turns out that your agreement is ok and is enforcable, then file an N1 with the local court.

 

I'm still a bit confused. These seems to be 3 things available to me:

 

1) Claiming back charges (I'm O.K with this one)

 

2) Default removal due to the fact it's only there because of the charges (May or may not apply to me?)

 

3) Default removal due to them not having a true and signed copy of the default notice (Have I just made this up or misunderstood something somewhere)

 

4) Default removal due to them not havening a signed credit agreement

 

If someone could advise on those 4 I would really appreciate it as I could start to eliminate certain things from my small feline brain (Which would be nice).

 

Thanks a lot for all the help everyone you really are puuuuuuuuurfect.

 

PTC

 

(Sorry for the long post)

[midge61]

hi

 

1) Claiming back charges (I'm O.K with this one)

 

2) Default removal due to the fact it's only there because of the charges (May or may not apply to me?)

 

Yep. This is what I am going for. As it is made up solely of charges it is incorrect.

 

3) Default removal due to them not having a true and signed copy of the default notice (Have I just made this up or misunderstood something somewhere)

I may be wrong on this but I have always believed they do not keep actual copies of the ones sent out. Others may know better than me.

 

4) Default removal due to them not havening a signed credit agreement

 

Yep. Once you make the sec 77-78 request wait to see what they send first. If it is an application then it is unenforeceable.(they actually sent me a correct agreement tho!)

 

Hope this helps.

 

Keep going you will win.