Capital One and the FOS.... argh!

[willtheywontthey]

I have had a penalty charge claim since 2007 with the FOS. In addition to this I also complained at the same time about telephone harassment. Capital One offered me the charges back soon after but as they had not even mentioned the telephone call issue I rejected the offer.

 

 

Since then I have CCA'd and SAR'd basically to no avail. I also received somebody else's personal details (about 50 pages!) so added this to the complaint (and to ICO).

I have also complained that Capital One are not replying to my letters etc.. I then got an adjudicator which I was please about after several months BUT it seems he sent me an email last month (I did not receive) and today I got one saying:

Please find below a copy of the e-mail sent previously. As you will see, I arranged for Capital One to send you the information pack in order that you might propose a way forward with regard to the repayment of your outstanding debt. I should explain any arrangement you agree will not effect the investigation and/or outcome of your complaint.

My colleagues in 'banking investigations' will look into all the issues you have raised and provide you with a copy of their findings in due course. However, I should explain that it is not part of our role to supervise, regulate or discipline the firms we cover. Therefore, it is not for us to award punitive damages, or to require a firm to alter its systems. Our role is simply to resolve individual disputes between consumers and financial firms, where consumers think they have lost out. We provide an informal alternative to the civil courts, and we have the power to award monetary compensation to make good actual loss, damage or substantial inconvenience that is caused to a consumer by a breach of duty on the firm's part.

Regards

 

Thank you for your e-mail/letter of 15 August 2008. I am currently considering the points you have raised and my investigation is therefore ongoing. However, I have spoken to Capital One and agreed any telephone contact will be suspended for a further 28 days, although it is noted you are in the process of changing your telephone number and this may well solve your problem once and for all.

 

As you are aware there is currently an outstanding balance on your credit card and even in the event I was to uphold your complaint, it is almost certain you will be required to reach some agreement with regard to payment of the debt you owe. Capital One is eager to facilitate this and has sent you a pack of information, which will allow you the opportunity to propose a way forward.

If you feel unable to co-operate with Capital One in this matter, I am informed your account will be considered in default as of the end of September and will be passed to a collections agency for further action.

Notwithstanding the above, I would hope to write to you shortly with my findings.

 

 

 

 

Am I wrong to assume my account is 'in dispute'?????

[42man]

In my opinion I would consider it still in dispute until they give their 'final' response....as for the harrassment, it may be that you have to take them to court for the harrassment....i'm watching this with interest - keep us posted....

[willtheywontthey]

thanks.

 

I'm a bit astounded to be honest regarding the fact that the FOS adjudicator asked Capital One to send me this 'income' form. I had no idea they had asked this (the so-called email they sent me but did not arrive mentioned it apparantly) of Capital One and so ironically I sent a complaint to the FOS about Capital One sending me unsolicited mail to pressurise me to send them money (the wording on the letter said words to effect of 'thanks for letting us know about your financial situation and here are the forms to fill in' (!!).

 

It seems to me that the FOS has played into the hands of Capital One or assisted them in this matter by instigating the sending of this form which Capital One will then default me on for not returning!

 

Why does FOS not treat my complaint about 1. penalty charges and 2. harassment by phone 3. Not replying in full to S.A.R - (Subject Access Request) 4. Providing somebody else's data in my SAR and 5. recent complaint about minimum payment not being separated from overdue amount on statement as being 'in dispute'??

 

Why do they seem to be supporting Capital One by not instructing (ok 'advise' them???) to cease making negative notes on my account and allowing them to say they will default me end of month???!

 

Is my account not 'in dispute' according to FOS rules???

 

Note: I have informed FOS by return email that account 'in dsipute' and asked them why are they not advising Capital One not to make notes / allow them to threaten default whilst complaint is ongoing and 'in dispute' etc

 

I also informed them I was 'looking into' changing my number but would only consider this after the FOS investigation as I felt strongly that I should not have to do this and for this comment not to hinder nor influence the investigation into a serious complaint.

[willtheywontthey]

am I right in assuming then that according to the FOS that credit card companies may default you even when the FOS are investigating and all this 'in dispute' (eg for penalty charges) references makes not one iota of difference.

 

basically in my case I'm b*****ed? OR is the FOS adjudicator not (yet) following guidelines?

 

 

Is it worth me pursuing the OFT - are they perhaps the ones who will act upon 'in dispute'? Or is it the ICO - although I have contacted them already but about the breach of Data Protection Act with reference to the SAR and receiving 3rd party details in 'error'.

[beachcomber60]

Interesting read, we are also in formal complaint/in dispute with capital 1 and have been defaulted since launching complaint/dispute. They lie and demand things they are not legally entitled to.

 

Have complained to OFT & TS who are on our side regarding telephone harrassment, especially when told that we have a signed letter from cap1 admitting the calls and stating that they will continue until such time as we provide bank statements, wage slips.

 

Didn't think they could default, add charges & interest while in dispute?

[willtheywontthey]

IF (big I) Capital One do not default me at the end of the month as they have apparantly 'agreed' (!!) with the FOS if I don't send off the forms (the very ones the FOS asked on my behalf!!) then a default is coming my way end of September.

 

Back to the IF part.... IF above does not happen and a judgement is reached (I am assuming FOS will only agree to penalty charges refund based on their wimpishness thus far) then I take it Capital One would have more grounds to default me then....... I'm surprised they haven;t agreed to just stop calls to be honest and to default me. They could have done that almost 12 months ago.

 

Is it worth me also complaining to OFT whilst FOS 'investigating'?? Is this aceptable to FOS or will they stop their investigations. I'm trying to figure out a fast way to get Capital One to accept account is 'in dispute' and for them to stop even thinking of putting a default on account end of next week. Do I need a Default Notice or some written warning from Capital One directly - (or will failed email I did not receive from FOS act as the default instigation??)

[tifo]

this is another example of the FOS's support for the banks and biased and unfair decisions.

 

i have had many of these. If you look at my thread on 'FOS and guidelines' you will see they don't follow their own guidelines or even the law, which they state they don't have to.

 

they make a mockery of the complaint and the banks know exactly how to use your complaint at the FOS in their own way. In a way, you're at a disadvantage when you complain to the FOS.

[willtheywontthey]

I have to say I'm flummoxed by the FOS approach so far and their complicity basically in getting me a possible default!! I thought the FOS were supposed to investigate complaints not interefere?

 

can anybody anser these 2 questions please????

 

1.Can Capital One default me 'through' the FOS who seems to be arranging allsorts of issues without my consent rather than through me? I have not had a default letter off Capital One and it is only the FOS who said that Capital One would be defaulting me end of month if I didn't come to some arrangement.

 

2. Which organisation (obviously the FOS is ignoring this issue) would be supportive of my account 'being in dispute' due to charges and assist me in ensuring that negative comments to CRAs are removed - mainly concerned about the possible default obviously? Is it OFT, ICO - other??? Or a no-hoper?

[surprise]

I don't think you have much hope based on my dealings. You will need to do it yourself through Court. I have been dealing with my daughter's case since March 07, it went to the FOS in August 07. I disagreed with what the Adjudicator said so it went to the Ombudsman who agreed with the Adjudicator. I now have CapOne telling me to pay up as I have had the ruling of the FOS. The only way forward now is legal action and I think you will probably finish up the same way.

 

I have now had three cases with the FOS and I must say I am concerned as regards the relationship between CapOne and the FOS, they do seem to be working more hand in hand than any other organisations. I am sure I read somewhere that the Chief Exe from Capital One moved to the FOS or am I getting confused with OFT?

[tifo]

I must say I am concerned as regards the relationship between CapOne and the FOS, they do seem to be working more hand in hand than any other organisations.

 

In my experience, it seems to be hand in hand with every bank.

 

I've had decisions based on what the Adjudicator 'thinks' and when asked for the basis for this, nothing came back. Then when i've asked for more info from the bank/DCA, they've said they don't take 'instructions' from me. Funny how they take 'instructions' from the bank and not me for info.

[citizenB]

 

 

3. Not replying in full to S.A.R - (Subject Access Request)

 

4. Providing somebody else's data in my S.A.R - (Subject Access Request) and 5. recent complaint about minimum payment not being separated from overdue amount on statement as being 'in dispute'??

 

 

 

 

I am unable to answer the rest of your query in this post. But the bit I have left behind is not an FOS complaint. You need to get this complaint into the Information COmmissioners Office. They do take this type of complaint very seriously.

[willtheywontthey]

I have sent an official complaint regarding the non SAR and 3rd party details being sent to me. I also 'mentioned' it to FOS so they could see what I have to suffer with Capital One (to no avail it seems!).

 

Problem is that FOS is supporting Capital One's position to default me and the ICO haven;t done anything yet.......

 

Has the ICO got teeth then??? I'd heard they simply write back saying 'do this' but that's about it...?

[willtheywontthey]

oh add to the initial FOS email which I never got at the time. This explained how it was the FOS who asked Capital One for this income/expenditure form. When I got it (I think there's an old thread of mine here somewhere about that at the time!) I complained to FOS immediately saying Capital One pressurising me for payment by sending unsolicited income/expend. forms!

 

I got a letter last week from FOS asking me to send these forms to him as he said in his email (which is when I discovered I had not received this so-caled email). Anyway I sent the forms back immediately he asked. I am starting to think perhaps he meant for them to be filled in?!! Silly FOS man.

[citizenB]

SOrry, I didnt realise you had sent your complaint to the ICO as well as the FOS.

 

I doubt very much whether the ICO has teeth in the way you want them to. They do take breaches of the Data Protection Act ie sending you 3rd party information quite seriously though.

 

Have you read ReallyMadWoman's thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136654-complaining-financial-ombudsman-service.html

 

She has had some successes in her dealings with the FOS and perhaps there might be some ideas you can use.

[willtheywontthey]

thanks very much for that link - had never seen that thread! I think I will have to do some serious reading of that thread and write to the FOS again in the hope of countering anything they may well use as a defence but to be honest I am not very hopeful.

 

I do think this claim that accounts should not have negative notes made on them or a default on them whilst 'in dispute' should come with a health warning. What's the use having these laws / regs / codes if nobody is going to action them??? So much for consumer protection!!:-x:-x:-x

[willtheywontthey]

did I mention they have sent me a default notice? dated 19th and arrived 24th. I have made a separate thread (somewhere!) to see if people think it is valid (probably is the sods).

 

Got a new FOS adjudicator today. The other one did mention something about complexities so passing the buck. I don't think he could get his head around my ramblings and lack of legal technical speak!

 

This latest adjudicator has sent me a letter stating he's who he is and all that. He's also made along list of what they are not able to do (cheer me up why don't you!) - one of which got me puzzled / worried. One of my complaints is that Capital One are misleading me etc by not giving clear minimum payments due for the month in their statement. Rather I am having a total due 'now'. All jumbled up. This jumbling up into one big 'owing' means there are x amount of overdues there - from 50 pounds maybe to 100 - who knows (I don't!!).... so when the total is say 600 pounds that could include 'parts' of previous overdue amounts and they then claim 5 late payments on experian. It is basically impossible to pay 'one' payment for the actual month... does this make sense? I cannot seem to get this across.

 

Anyhow... FOS guy says 'we do not interfere with the way firms design and run their business generally; for example the way they present information on their account statements. These are matters for firms' commercial judgment.'

 

If so then this means that Capital One can write whatever they want on the statements - incorrect amount or anything?? - and basically get away with it???

 

If so I am very very unhappy. Would appreciate some assistance here if possible. The FOS said they woul also let me know what other aspects of my complaint are not relevant. I was hoping they'd be saying what 'is' relevant!! Still they're going to have a job going through my ramblings.

 

They also want a copy of the notes Capital one have made to Experian. Probaly just to tell me Capital One can do what they like.

 

FOS - jury's out!!!

 

Long live the ICO!! (probably after a default and probably useless also).

[surprise]

With regard to the default notice it is not valid. For a Default Notice to be valid it has to give your 14 days clear notice. The amount also needs to be correct so if there are any penalty charges then it is not valid.

[beachcomber60]

sorry to butt in but by penalty charges do you mean late payment & over limit charges?

[surprise]

Yes - should only cover the amount of the arrears

[willtheywontthey]

unfortunately the default notice is most likely valid as a document - they give 28 days which covers thier 4-5 day postal delivery time!http://www.consumeractiongroup.co.uk/forum/capital-one/161515-capital-one-dn-valid.htmlIt seems that everybody knows that if an account is 'in dsipute' ie penalty charges included then you should not be defaulted but it happens. Does anybody know of instances when the FOS or ICO - or any other organisation - has told Capital One to remove a default OR is it only ever been done through the courts???

[surprise]

When I was reclaiming charges through FOS against Capital One I accepted the settlement claim subject to the Default Notice being removed and Capital One agreed.

[surprise]

Sorry I may have confused you with the above post. I have acutally had two claims against CapOne - 1 for my daughter as previously posted and the one I refer to above was my own case. My case was settled to my entire satisfaction but its my daughter's case that has been the nightmare.

[willtheywontthey]

thanks for that. You mentioned 2 cases and 2 different outcomes (so far) - were these two similar complaints?

 

Do you happen to have the 'wording' of the FOS regarding anything appropriate that they found in your favour? I could then re-jig this to use perhaps like a warning shot or reminder to FOS in case the start (!) acting silly in rejecting all my complaints as I think they have stared to do and will continue to do.........

[tifo]

I could then re-jig this to use perhaps like a warning shot or reminder to FOS in case the start (!) acting silly in rejecting all my complaints as I think they have stared to do and will continue to do.........

 

And you think they will listen to you (or anyone else)?

 

I've lost many thousands of my refunds from banks paid to DCAs unconnected with the claim (one DCA even commented they couldn't understand why the bank would pay them) and even when i'd settled the account in full with said DCAs. The FOS then said the bank was still left with an unpaid account which they wrote off, the reasoning of which i cannot understand and they won't explain. Either way, we can't win.

 

In my cases, the same adjudicator has stated he doesn't think i'll pay the DCA if i receive my own refund. I've passed this on in a complaint to the FOS as it seems to be the basis for his decisions and a totally unfounded slur on my character. He considers an unenforceable debt to be a smaller or paid unenforceable debt after any refund. His decisions go against legislation and common law but they don't have to follow law, do they ...

[willtheywontthey]

but I may as well try seeing how the adjudicator will probably report something next week or two? I would be kicking myself if I'd missed something obvious. I am extermely pessimistic and am not holding out much hope at all having read a few threads here and also having read about your experiences tifo.

 

This is why I am today researching more into what Trading Standards can do / assist with CCAs etc and also whether I have more information to give the ICO. Next on my list is to find out whether the interest rates were hiked up as a result of my penalty charge claim, FOS complaint in 2007 and onwards.