Help 48 xxx versus Capital One

[Help48xxx]

Oooo...sounds like fun ahead for me then CitB!

 

I have MAJOR issues with the PPI side of things for many reasons which I will make clear later..(you never knows who's watching ).

 

What a shambles!. But what a joy to be confident in telling them how they are failing to do their jobs

 

xx

[Mockenrue]

Sounds like pulling teeth citizenB! Thankfully I didn't take out the 'compulsory' PPI.

 

My next hurdle will be trying to claim back all the charges from Cap1 even though I've defaulted and been passed to CapQuest.

[citizenB]

Help, I worry that you are starting to enjoy this far too much Hope you are well.

 

Mockenrue, it most certainly is.

[WendyB]

Today, received the terms and conditions of the insurance. Across the front page there was a handwritten note advising that this was "sold over the internet on 20/08/03". Erm.. no it wasnt. Apart from the fact that we didnt get hooked up to the internet until 2005. OH wouldnt know how to apply for anything online and the account itself was set up on 09/07/03 Have written back asking them to provide a copy of the internet request. Now this should be very interesting. And.. why would he apply for a card using the mailer application form and then go online to order the PPI separately in the first instance ??.

 

Just thought you might like to know what you are in for.

 

Don't like to worry you, but when I asked for proof that I'd ticked the box on the internet - they sent me a screenshot of the internet application with the box ticked.

 

Not sure if they could "fiddle" this on their system or not.

[WendyB]

Sounds like pulling teeth citizenB! Thankfully I didn't take out the 'compulsory' PPI.

 

My next hurdle will be trying to claim back all the charges from Cap1 even though I've defaulted and been passed to CapQuest.

 

I was defaulted and passed to Debitas. Didn't bother with CCA at all, just went straight to Crap One with prelim, LBA etc. Got their standard bog off stuff. Filed at court and got the full amount, plus stacks of interest, plus stat8%. About 3 months start to finish.

 

Plus once you've sent the Prelim etc the account will be indispute so they won't be able to set the DCA hounds on you.

[citizenB]

 

Across the front page there was a handwritten note advising that this was "sold over the internet on 20/08/03". Erm.. no it wasnt. Apart from the fact that we didnt get hooked up to the internet until 2005. OH wouldnt know how to apply for anything online and the account itself was set up on 09/07/03 Have written back asking them to provide a copy of the internet request. Now this should be very interesting. And.. why would he apply for a card using the mailer application form and then go online to order the PPI separately in the first instance ??.

 

 

Don't like to worry you, but when I asked for proof that I'd ticked the box on the internet - they sent me a screenshot of the internet application with the box ticked.

 

Not sure if they could "fiddle" this on their system or not.

 

Wendy, we didnt even have a computer, let alone internet until late 2004/early 2005. Neither did we have access to .

[Mockenrue]

Filed at court and got the full amount, plus stacks of interest, plus stat8%. About 3 months start to finish.

 

Hi Wendy

 

Was the interest you got back the interest on the penalty charges or on the full balance?

[willtheywontthey]

subscribing

[WendyB]

Hi Wendy

 

Was the interest you got back the interest on the penalty charges or on the full balance?

 

Interest on the charges - charges were £638, got about £300 interest. Not a bad result I thought.

[Help48xxx]

I got a response to my SAR today...sent by registered mail!

 

It's pretty much as you said it would be CitB...years of statements with a list of terms used in the data.

 

So...most of what I requested isn't there, and there's no explanation as to why. I'm going to have to dust off my varifocals and trawl through what they have provided, (trying my best to understand it), and send a list of outstanding documentation. Deep joy!

 

xx

[citizenB]

I got a response to my S.A.R - (Subject Access Request) today...sent by registered mail!

 

It's pretty much as you said it would be CitB...years of statements with a list of terms used in the data.

 

So...most of what I requested isn't there, and there's no explanation as to why. I'm going to have to dust off my varifocals and trawl through what they have provided, (trying my best to understand it), and send a list of outstanding documentation. Deep joy!

 

xx

 

Well there is nought on the tv tonight, so it will give you something to do

[willtheywontthey]

would appreciate seeing your letter / response of what's missing as I really do not understand what I asked for in mine to be honest!

 

They sent me their third attempt - yet again statements and some print screen captures of 'something'! Nothing else. Need to let FOS and ICO know technical response!!

[Help48xxx]

Hi willtheywontthey,

 

I've started trawling but it's so far short of what I requested that I'm going to use a copy of my original request and highlight the one's they have sent, (as there are far less of them), then request the ones they ignored, (sorry...I did of course mean overlooked ).

 

That will have to wait until the weekend as I've gone bug eyed just trying to read the stupid screen print outs they've sent.

 

I'd be inclined to ask CitB as she seems to have some pretty great templates.

 

xx

Edited October 1, 2008 by Help48xxx
typo

[Help48xxx]

Hi folks,

 

I need some help here.

 

I've had a look through the paperwork and have listed all the account charges since 2001. They range from £18.00 - £98.00. I took the card out in 1997 but only have credit limit and balance info from 1999 until 2001. The details from 2001 are more detailed, (transactions etc).

 

So, I need to know what to do with this information about the charges. How do I go about deciding if I can claim them back or if it's best not to whilst I'm in dispute about the CCA?

 

This is the furthest I've got with any of my creditors, so I need a bit of a tutorial in how to deal with information provided.

 

xx

Edited October 1, 2008 by Help48xxx
punctuation

[citizenB]

Hi Help, this is something I am a bit confused about as well. If the validity of the CCA is being disputed as a whole, is it right to claim back charges?. Because to my thinking, if you ask for the charges back you are admitting the debt.

 

However, if the charges are more than the outstanding debt could that be a way forward.

 

Sorry not to be able to help on this one.

[WendyB]

Its either CCA- unenforceable, or claim the charges back. Not both. If you want a quick fix, chages back, debt reduced (or gone) and possibly a bit left over, then go for the charges.

[banker_rhymes_with]

Its either CCA- unenforceable, or claim the charges back. Not both.

 

I think it can be both. The issue boils down to two main issues:

 

(1) Did they ever set up the Agreement correctly.

 

(2) Have they added Unlawful Charges.

 

The issue of admitting a Debt should be removed from the equation. The Statements all prove that money went to and from Help48xxx, so that is not doubted, but does not affect the issue.

 

This was an Agreement that was Regulated by the Consumer Credit Act 1974 (CCA-1974).

 

There is ample and binding Case Law that confirms that any surplus of funds paid to the Consumer have to be regarded as a Gift from the Original Creditor (OC) if the OC neglected to set up a properly executed Regulated Credit Agreement (and complied with any Cancellation Rights requirements and Copy Agreement despatch timescales etc).

 

In effect, they are required to get the paperwork right at the very outset. That is mainly all they have to get right. After that, it's just Account Management and sending Statements. Then lawful Default/Termination and possible Enforcement if it all goes pear shaped for them.

 

The OC, we have to assume, was a large and sophisticated financial institution, with an Army of Lawyers whose sole task was to get the paperwork right. The CCA-1974 requires nothing less.

 

They were holding all the Aces when Help48xxx first went near them. It was their Agreement and it was on their Terms. But the Agreement was nevertheless Regulated by the CCA-1974.

 

Now that it has gone sideways for them, the Agreement is absolutely vital for them. If their Army of Lawyers messed up, then there may not be an Agreement that can Enforce the Debt. If they can't Enforce because there is no Agreement worth squat to Enforce, then what we have is a Gift, not a Debt.

 

No Agreement = Gift to Help48xxx.

 

No Agreement = No Right to Default.

 

No Agreement = No Agreement to Terminate.

 

No Agreement = Nothing to Enforce.

 

No Agreement = No Consent to Share Data.

 

Now, if that is the case, then what we have are records of Gifts flowing to Help48xxx and Payments back from Help48xxx to the OC.

 

In my opinion, if Help48xxx has paid back more than the Gifts, then Help48xxx should ask for the difference back.

 

This does not mean asking for the Interest back, as the Interest is of no interest (forgive the pun), as the OC never had a right to charge it anyway.

 

What Help48xxx is asking for back is the excess of Payments over the Gift of funds.

 

Unlawful Charges can be combined with the above request, depending on whether these are greater or lesser than the excess of Payments made by Help48xxx to the OC.

 

I must stress that none of this has been tried yet, but if you follow my reasoning, I think it is quite valid.

 

However, if Help48xxx wanted to go ahead and claim for the Unlawful Charges, that too should be fine. All Help48xxx is doing is asking for Unlawful Charges back based on the Account Statements.

 

This request does not admit any Debt.

 

The argument about the Agreement can carry on, and if they cannot produce one, then Help48xxx can either walk away safe in the knowledge that the OC were silly to make a Gift, or Help48xxx can ask for any surplus back that went above the Refund of Unlawful Charges.

 

The bottom line has to be, if they failed to create a binding Agreement at the very outset, one that completely satisfied the requirements of the CCA-1974, then there can be no Debt. There is nothing to Enforce.

 

I appreciate they will sell this on to a DCA, and there will be lots of moaning and bitching from the OC. But it is entirely their own fault.

 

OK...if they produce a binding Agreement, and can bring the Original Copy of that to Court. Then there is a Debt and it's to be expected that they will seek to Enforce that. In that case, Help48xxx has a battle on, and the tactic has to be either re-claim Charges now, or hold that back as a Counter-Claim should the OC decide to go to Court to Enforce.

 

As always, this is my own interpretation. Please discuss rather than act on anything I have said.

 

Cheers,

BRW

[WendyB]

I follow your reasoning - I think!. As you say though, that hasn't been tried and tested in court yet. Maybe if and when it is we will have a clearer idea, but until someone does, and a precedent is set, we won't know. And that depends on someone having the bottle (and the funds) to take it all the way.

 

I think it boils down to this:-

 

How much is the debt to Crap One? and Would reclaim of charges wipe the debt out/reduce it significantly?

Because you have to remember that if the balance is made up of charges, then Help48 won't get the money refunded to him, as he hasn't actually paid them in the first place if they are still an outstanding balance.

 

And even if they can't produce an enforcable agreement, it doesn't mean the debt will go away, it will just lurk around and get passed from DCA to DCA, it won't stop them chasing it every now and then, which will mean more hassle from various DCAs and it will never go away. Thats why I think a charges reclaim, get rid of it once and for all, pay off what is legitimately owed, and it's one less thing to worry about.

 

I also think that using CCA to get out of paying what you correctly owe is a cop out and morally wrong. I am not in any way suggesting that's what's happening here.

 

Just my opinion.

[citizenB]

BRW, I would have tipped your scales, but apparently I have to spread some around.

 

Wendy, Help48 is a "she"

[WendyB]

 

Wendy, Help48 is a "she"

 

Sorry!

[banker_rhymes_with]

Hello WendyB!

 

And that depends on someone having the bottle (and the funds) to take it all the way.

 

It may not be such a hard one to fight and argue, as it would not be asking for Interest back, which is the main thing the bankers would fly off the handle about.

 

All that is being asked for is the excess of Payments over Spending on the Unenforceable non-Account.

 

Just to quote one of my own Cards as an example, the bankers say I owe them around 20k. However, over the 10 or so Years that I have had the Card, I have spent in total around 72k. But I have also re-paid them over 78k.

 

So, I've Paid around 5k more than I have ever Spent (just making it simple by saying 5k, the actual is between 5k and 6k).

 

The sum Total of all Interest and all Charges comes to around 25k.

 

Take the 5k I have over-paid off that and we get the 20k they say I now owe.

 

However, what if, as seems to be the case, there is no valid Agreement? The bankers messed up. They failed to do the one thing they needed to get right. The one thing they had an Army of Lawyers to help them get right.

 

So, now I have a banker wanting 20k, who is potentially up a creek and without a paddle. I can't tell, as they seem reluctant to show me the Agreement.

 

I could walk away and just call it a day. But they have not ceased in their Telephone and Letter Writing Harassment, despite their abject failure to produce the very document I have asked for to prove I am required to Pay them the 20k of Charges that they say I owe.

 

Some of those Charges are Unlawful, and much of the Interest is Penalty Interest, far above anything that can be considered reasonable. Although I regret it is within the Law. 35% is not, sadly, a crime, although it ought to be.

 

If you see where I am heading with this, morals do not come into it. I'm not seeking to get out of paying anything other than Unenforceable Charges, Unlawful Charges, Unenforceable Interest and Unenforceable Penalty Interest.

 

But my case is really quite simple. Just give me back the excess I paid over what I spent, and all the rest is their problem.

 

If, as I suspect, Help48xxx is in a similar position, then she may find the whole argument boils down to Payments v Spending. How to play that then depends on the Agreement, or lack of it, and if Spending is higher than Payments or vice versa.

 

I fear this is very simplistic, but sometimes cutting through all of the banking hot air and bumf can bring some clarity back into things.

 

I do fully agree that this will not go away unless something is Paid, or unless something is Claimed to wipe out what they say is owed.

 

One option is for Help48xxx to just resign herself to maybe 6 Years of hassle, and after that it's Statute Barred anyway, end of story. But in that time, CapOne and any DCAs following on, may litter Help48xxx's Credit (Debt) Files with unlawful Defaults and malicious adverse Data, and thus cause on-going problems with day to day finance and general banking.

 

The only defence there is to keep writing Letters and Complaints, and build up any Harassment evidence for Claims or Counter-Claims.

 

This is the sad fact, the bankers are not nice people, and you soon realise that when you cross them. They get very hissy, very quickly.

 

It takes mind-numbing stupidity to be unable to make money in a Business that can create money. 97% of all money in circulation within the UK has been created by Building Societies and bankers, only 3% was created by the Bank of England as Coins and Notes.

 

That's 97% number-money...created by the same people who are now moaning about how difficult life is for them in this Financial Mess of their own making.

 

Cheers,

BRW

[Help48xxx]

Hi CitB,

 

to be honest, I'd just be happy to get the debt written off or whatever they do. I do however think I should go after the PPI fees as they refused to let me cancel it and the charges, (without interest) amount to more than half the debt! So that's something I think that I should check out, if only as a matter of principle.

 

xx

 

xx

[Help48xxx]

Sorry guys & gals but my post got caught up in all this fantastic info', and so was delayed.

 

Yep Wendy, as CitB mentioned I'm female. As such, I'm am going to take an hormonal break and resume when my brain decides it knows how to function properly

 

xx

[citizenB]

Hi CitB,

 

to be honest, I'd just be happy to get the debt written off or whatever they do. I do however think I should go after the PPI fees as they refused to let me cancel it and the charges, (without interest) amount to more than half the debt! So that's something I think that I should check out, if only as a matter of principle.

 

xx

 

xx

 

I agree with you on this one. I read on text the other day that the FSA are going to have another "go" at Financial institutions that have sold this inappropriately, so definitely push to get this money repaid.. once you have added the interest on, then that is most of the debt removed

[Help48xxx]

I got a HUGE letter from Capquest. It had all the same documents as I got from Cap1 in response to my S.A.R - (Subject Access Request). So, either it's a total coincidence that they both sent the exact same amount of documents, or they're both ignoring the specific requests I made. I won't bother with Capcreeps, I'll bounce it all back to Cap1.

 

xx