Tamadus v Capital One ***WON***

[tamadus]

Preliminary letter going out tomorrow claiming a total of £449.73.

[tamadus]

Reply received from Robert Udy on 27 July offering £168 as a gesture of goodwill.

 

I hate to dissapoint you Mr Udy but who do you think you are stating your charges are fair and legal ? Time you woke up and smelt the coffee as not only do the OFT think they are unfair and unlawful but so do about 95% of this countries population.

 

Strange also that you passed this account to a collection agency as your still accepting reduced payments to it after over a year of asking for help in meeting payments following my divorce. They only chose to suspend charges when the CCCS became involved.Oh sorry I understand now that your 'help' was to keep applying fees despite my requests so that the account would get into a worse mess.

 

Sending 2 letters to Mr Udy this weekend. The first is an LBA letter giving them 14 days to refund my claim of £449.73p AND removal of default notice they chose to issue despite taking payments and my requests for assistance while they piled the charges on.

 

Anything less and it goes to court and we shall see if they want to stand up and prove their charges are fair and lawful.

[tamadus]

ok folks how does this look as a letter to our dear Mr Udy. This of course is in addition to the LBA going in the post at the same time. Sending this more to rattle his cage and correct his misconceptions.

 

 

Dear Sir

 

ACCOUNT NUMBER: xxxx xxxx xxxx xxxx

 

 

With reference to your letter dated 24 July. I am fully aware of your position regarding the unlawful charges your company had made to my account.

 

As you are aware of recent media coverage concerning the Office of Fair Trading investigation into default fees you will also be aware that they have NOT stated that £12 is a fair cost, but have stated that £12 is the point at which they will become involved in taking action.

 

Your charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. They are also invalid under the Unfair Contracts Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999.Para.8 and sch.2.1.e.In the event that the charges are not a penalty they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

In regard to the default notice applied to my credit record, it should be noted that this account is in dispute and consequently cannot be referred to a collection agency. In addition Capital One Bank is also accepting reduced payments on a debt management plan administered by CCCS. This account ONLY got into a default condition as a result of your penalty charges and your companies failure to rectify the situation despite several telephone calls from myself.

 

I will accept your offer of £168 in partial settlement of my claim and reserve the right to pursue the balance of my claim through the court system. This will of course involve additional costs to your company. I expect to receive your cheque for partial settlement in the sum of £168 within the next 7 days.

I have today sent via recorded delivery a letter before action giving you 14 days to settle my claim IN FULL, after which I will issue court proceedings without further notice.

Yours Faithfully

[tamadus]

Ok LBA totally ignored by Capital One but phone calls from their DCA department debitas have increased sine saturday to 3 a day despite being told not to call me under telecommunications act.

 

Issuing court action for recovery tonight on moneyclaim plus sending Debitas a stiff letter over their failure to conform to the telecoms act and I am going to send a CCA s78 letter to them which should make them back off .

 

Can't seem to find an address for serving court papers on Cap 1 anywhere. Can I assume its the Trent House address ? I quick answer from somebody who has made a succesful court claim against them would be appreciated as I really want this one moved to litigation tonight 31/8/06.

 

Thanks in advance

[tamadus]

Total claim now £486.70 plus s69 interest of £52.09. added another 5 weeks of interest on since the original claim. of £449.73.

 

Going to use the Trent House address although moneyclaim search gives the company name as Capital One Services Inc.

[tamadus]

Claim filed on MCOL for £462.99 on 4/9/06

[tamadus]

Hi Tamadus looks like were starting litigation on the same day, let the fun commence! I think you've got the date above date wrong matey:D

 

Oops corrected it Thanks for pointing it out Thailand. Let battle commence, I'll teach them to ignore my LBA at their peril.

 

They did make a partial offer but I have no idea if its been credited so claimed the full amount besides any credit they do make I expect to be counted as a payment not a credit or refund as I consider I have already made payments which cover this amount.

[tamadus]

Can somebody please look this over to see if it makes sense. It's in response to a letter I received today re-iterating there offer of the difference between their £20 charge and the OFT's £12. It also addresses the points I raised in a letter to Debitas about their phone calls. I would post the letter I received but my scanner has decided to die on me:( Some help with paragraph 3 would be especially useful as I can't find the bit of legislation that inhibits enforcement when an account is in dispute. I'd love to know why a letter takes 4 days to reach me as well

 

I need a quick reply if possible as I have to get this in the mail today as I am away for a week.

Paula Scott

The Executive Office

Capital One Bank

PO Box 5281

Nottingham

NG2 3HX

 

16 September 2006

 

Dear Mizz Scott

 

Account No. XXXX XXXX XXXX XXXX

 

 

I am in receipt of your letter dated 11 September 2006 and have to admit to being surprised at some of the contents.

 

My letter to Debitas was as a result of several weeks of receiving phone calls several times a day, despite telling them I do not disclose personal information where a cold caller withholds there number, because of the high risk of identity fraud. Debitas staff were often belligerent and abusive in this regard.

 

The immediate result of this letter was that the account was passed to a debt collection agency (Newman & Co) outside your organization. This is not only surprising but also contravenes the Data Protection Act and Civil Procedure rules, in that the account is clearly in dispute and enforcement action should not be undertaken until such dispute is resolved. I have now sent a similar letter to Newman & Co.

 

In Paragraph 3 you state that this has been referred back to your speciality support unit. Please confirm whether payments under my debt management plan with CCCS need to be made to Capital One or remain with Debitas.

 

I agree the dispute is about unlawful charges made to my account in respect of late payments, over-limit fees etc. Your fees are clearly unlawful as they are a disproportionate penalty and therefore unenforceable as they are contrary to common law. They are also invalid under the Unfair Contracts Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999.Para.8 and sch.2.1.e. In the event that the charges are not a penalty they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. This is a view expressed per se by the Office of Fair Trading in April 2006.

 

The £12 mentioned by the OFT in their report is NOT a "new" fair and lawful charge but rather the level above which the OFT will consider to be automatically unfair. A charge of less than £12 will not automatically be considered fair though. The OFT also said "this does NOT mean that credit card companies should simply drop their charges to £12"

 

English (and Scottish) Law is clear on the issue. A clause in a contract that imposes a penalty upon one party is unlawful at Common Law and a clause which requires a person acting as a consumer to indemnify another against negligence is void under the terms of Sec.4 Unfair Contract Terms Act 1977, unless the inclusion of the clause it's self meets a test of reasonableness. The fact that the charge created by such a clause is set at a particular level does not make the actual clause that provides for said charge valid. My claim for a FULL refund therefore stands.

 

As you are probably aware a claim has already been filed within the county court system for small claims. I note that it has now been acknowledged and I await your defence with interest. Obviously litigation is not in the best interests of either of us but your failure to respond to my Letter Before Action dated 29/7/06 and delivered to your company via recorded delivery on 2/8/06 left me with no viable alternative.

 

In addition your default notice was issued despite my notifying your company in early January that I was in communication with CCCS and had given them all the information needed to establish a debt management plan. They had also been in contact with you concerning proposals associated with this DMP. As a result the default notice was issued unfairly and without consideration to the intervention by the CCCS. This has caused considerable stress to me.

 

The court system would much prefer us to reach a settlement without recourse to litigation and subsequent attendance at court. I therefore give you this opportunity to settle this matter. My requirements are:

 

• Full repayment of all charges and interest on those charges as detailed in my claim (reference 6QZ60637). Payment should be by means of a cheque to me. Any refund into my account MUST be regarded and treated as a payment. A simple refund or credit will not be satisfactory, these chares and the interest upon them have reduced the effect of payments made to the account.. This totals £512.99 as at date of issue 5/9/06.
  
• Complete removal of the default notice. Failure to agree this will result in a further claim being made in order to get a court order for removal of the default.

I sincerely hope you will agree to a settlement on the above terms and I look forward to your response.

 

Yours faithfully

 

 

 

 

Tamadus

 

[tamadus]

Thanks pugsley, its going now as I am away for a week on business if it kicks them into submission then its worth a shot. Although they will cave in anyway as its already been filed and waiting their defence.

 

I have been arguing with myself for about 3 weeks over including the default on the claim but it seems to be getting ignored which is no surprise as I am using moneyclaim. I doubt they will accept that part of the settlement but I think I have a way of dealing with it as a seperate issue. This letter is more of a way of showing the court (if it comes to it) that I have continued to persevere in coming to a settlement as well as addressing some outstanding issues.

[tamadus]

rats I have given the letter to somebody to post recorded for me on Monday and forgot to include court costs in it so the total is wrong. OOOps costs are included in the total of £512.99

[tamadus]

WooooHooooooo

Letter recieved this morning offering full settlement of £512.99. but absolutely no mention of my letter above, although they have put they would like to settle to avoid wasting valuable court time. Yeah I bet you would lol.

 

They havent mentioned the interest I was claiming from issue to settlement date and also no mention of the default and refunding as a payment so it helps improve my payment history. Sooooo I think a phone call is in order this week. I am definitely going to modify their settlement form though

[tamadus]

Thank you both this was a goo done to crack as now I can follow up to make sure the refund is counted as a payment and get the default removed.

 

Feel really pleased as the paperwork from MBNA wanting to settle arrived today as well

[tamadus]

I have just written accepting the offer but also told them that unless they remove the default and credit the refund as a payment ( so it helps reduce the current arrears) I will start a new claim and they can explain in court

 

I think we can consider this one finished, if they dont do it then it will be a new claim.

[tamadus]

It's been a good month for you. I will need a rest from updating all your details and thread names, congratulations etc.

 

A glass of something bubbly might help revive me.

 

Thank you Caro.for the congrats and all the updating

 

And I seem to recall you telling me not to try handling too many at once lmao

 

Its sooooo nice when they all come home together

 

Another donation made pity these cards are not active at the moment as I would have loved to have donated using them

 

Bubbly is definitely on me if your up for it we are not that far apart

[tamadus]

Thanks breadline, a win is always good but 3 in one day must be a record

 

Capital One and 2 accounts with MBNA all offered on the same day for a total of £4157