Vanderpelt Vs Capital One

[Vanderpelt]

Ello all

 

I have been an avid fan of the site eversince it helped me win against monument a year ago (how does the time fly ) so i have started against the wifes, and myselfs Cap 1 Debts, just wanted to query a few things as i am still trying to get my head around it all.

 

I have done the SAR for both of us, but do i also need to obtain the CCAs as well? if so do we send it to the same address as the SAR?

 

We got married on the 12 August 06 and have not got around to changing the name on my wifes account (due to not using it really), so do we change it now then start the action, or send in a copy of the Marriage Certificate with the letter to show the change of name?

 

Thanks for any help

 

Van

[WendyB]

As you probably know, you can go the CCA route or reclaim charges route. Personally I think you might as well go straight for the charges as it's usually quicker. And crap One usually roll over fairly easily. Wouldn't hurt to sort out the name change now. tbh you should have plenty of time to do this before you get your SAR stuff back. just give them a call and ask what proof they need for change of name.

[Vanderpelt]

Thanks Wendyb, thats what i figured hence the digging out of our marriage certifcate (and drowing my cat in paperwork in the process).

 

At least i have enough statements to know the current position, and hopefully i can get the whole ball rolling.

 

Van

[Vanderpelt]

Another question whilst i wait for the statements to arrive, i have used the ones i have and worked out that we are owed around £1500 before any kind of interest, what is the best kind of interest to apply?

 

as i have seen some use CCI and others do the 8%, which one should i apply? bit lost there and also i cant use the speadsheet for the CCI whilst i am at work

 

thanks

 

Van

[havinastella]

Have a look here

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/145027-interest-tutorial.html

 

 

JOgs

[Vanderpelt]

Just an update

 

I have decided to use simple interest, as anything else is more work and to be honest i just want my money back that i paid. So i have worked out my current charges and i am awaiting the paperwork from capital one to fill in the gaps!

 

but can anyone here help me with this thread

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/161593-vanderpelt-marbles.html

 

Thanks

 

Van[url=http://www.consumeractiongroup.co.uk/forum/other-institutions/161593-vanderpelt-marbles.html][/url]

[Vanderpelt]

Just a mini update/grumble, Cap 1 have taken the money (and as far as i can see they have not paid off the debt that we owe them), but the statements have yet to arrive.

 

Still have 19 days to go though, i wanna get my money!

 

anywho back to work whilst i wait and plot my revenege

[Vanderpelt]

I have received the statements for myself and we worked it out and it stands (plus interest and the DPA fee) at £1,150 the thieving oiks!

Letter sent today and clock running there. Still need the wifes statements but I imagine hers will be slight more than that.

So watch this space

[Vanderpelt]

They have responded with there standard have a small pitence (around £260), i have replied with my, give me it all back!.

 

I take it Cap 1 are still the same in the sense that i will have to take them to court to force them to return all of the money?

 

thanks

 

Van

[Vanderpelt]

Claim No [ ]

 

 

 

IN THE BIRMINGHAMCOUNTY COURT

 

 

BETWEEN

 

 

 

 

 

XX

 

 

 

 

 

Claimant

 

 

 

 

 

and

 

 

 

 

 

CAPITAL ONE BANK (EUROPE) PLC

 

 

 

 

 

Defendant

 

 

 

 

 

 

 

 

PARTICULARS OF CLAIM

 

 

 

 

 

 

 

1.The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no XX (“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 is returned. (Full particulars are set out in 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 or

 

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.

 

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 of 3% of the amount owed or £5 (whichever was the greatest) 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, had a credit cheque returned or had a payment returned. The Charges are currently £12. Prior to 2006 the Charges were £20.

 

Penalty

 

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 Bank 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 Bank 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 £936 between 05/06/2003 and 04/09/2008 Particulars appear from Schedule 2.

 

18. On 22 September 2008 the Claimant demanded repayment of the sums wrongly applied.

 

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

 

 

And the Claimant claims:

 

(1)A declaration that the sums totalling £936 have wrongly been applied to the Account

 

(2)Payment of the said sum of £936. As well as the Data Protection Act fee of £10.

 

(3)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 £221.13, and at the daily rate of £0.74 until judgment or sooner payment. (4) Court costs of £75.

(4) The removal of any prejudicial information which the defendant bank may have passed to third parties in relation to the Accounts and in particular the removal of any default notice registered with any credit reference agency which was allegedly notified to the Claimant in 2005 since this was caused solely by the level of disproportionate penalty charges. The Claimant's 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, comprising of X pages, are true.

 

 

Signed

 

Dated

 

 

 

 

Schedule 1

 

 

 

 

From Terms and Conditions as at Oct 2007

 

4. Credit limit. We will determine the credit limit from time to time under this agreement and tell it to you in writing. Your credit limit and the amount of credit you have left are shown in your monthly statement. You and any extra cardholder can use the card, account or credit card cheques to make purchases or cash withdrawals and you, but not the extra cardholder, to make balance transfers which, added together and inclusive of interest and all other fees, charges and expenses, do not exceed your credit limit. If you go over your credit limit, you (and any extra cardholder) must not use the card or credit card cheques and you must immediately pay us enough to bring the outstanding balance within the credit limit.

 

8. Monthly payment. You must pay the outstanding balance by paying to us at least the monthly payment by the date stated in the monthly statement. The method of calculating the monthly payment is stated in the “Monthly Payments” section of “Key Financial Information”. Prompt payment is essential.

In addition, you must immediately pay any amount borrowed under this agreement in excess of your credit limit or which is overdue and the amount of any transaction made in breach of this agreement.

 

12. Other Charges and Default Charges. You must pay to us the ‘Other Charges’ and ‘Default Charges’ referred to in the ‘Key Information’ (as varied from time to time) and in our tariff of charges from time to time in force, as notified to you in writing from time to time. A cash withdrawal handling fee which is a percentage of the transaction (with a minimum amount) is payable on cash withdrawals. The current amount is shown in ‘Current Amounts of Other Charges and Other Features’. All charges may be varied as set out in section 18. We may require you to pay our reasonable charges for the following:

 

(a) Late or failure to pay charge: a charge if we do not receive your minimum payment by the due date shown on your monthly statement

 

(b) Returned payment charge: a charge if a cheque, credit card cheque, Direct Debit instruction or other method of payment is

not honoured.

 

© Overlimit charge: a charge for each statement period during which the outstanding balance is over your credit limit by £1 or

more.

 

(e) Returned credit card cheque charge: a charge for any credit card cheque we return unpaid for any valid reason.

 

(f) Administration charges: we may charge you for dealing with any special requests you make, including if you ask us:

 

● for information under the Data Protection Act 1998 where we are entitled to charge;

● to make a payment to your account through any express payment service; or

● to stop processing a credit card cheque.

 

You must pay to us all reasonable court costs to which we may be entitled against you, reasonable collection expenses we incur in collecting any amount you owe us under this agreement, reasonable costs incurred by us in trying to retrieve the cards and credit card cheques, and placing your account on a restricted list. Charges will be debited to the account when they are incurred and will form part of the outstanding balance.

 

 

Schedule 2

Capital One Account – XX

 

Do have table put it pastes badly

 

 

Can someone have a quick look at this and have i done it right?

 

thanks

 

Van

Edited January 13, 2009 by Vanderpelt
My name in there and Table issue

[Vanderpelt]

Anyone around?

[Vanderpelt]

any ideas?

 

and this is too big for MCOL any help there

[oggy1]

hi,

dont use mcol go the n1 route and it looks ok to me.

crap1 will say they will defend and dont forget when they make another offer you are now entitled to all of the interest plus costs and dont settle for less.

good luck with this.

sorry send the ni form to your local court and they want 2 copies of the poc.

the link for the form is in the templates library

[Vanderpelt]

thanks for that, have 3 complete copies of the paperwork and the court fee in my grubby mits. So i expect that this will all be dealt with a few days before court?

 

thanks again

 

Van

[Vanderpelt]

Well had a nice letter from Crap 1, they have repaid the amount i have asked for (after a rant about the usual stuff). The only bit they did not deal with is the default, so i am having a look at my credit file to see if they have or not (i am not sure now ) and if i have i will write back to explain that i want XX dated default removed and then will ask court to halt proceedings, if not then to court we will go.

 

thanks all

 

Van

[ukaviator]

Well that's a step in the right direction. You must hold out for the default removal. Hopefully not too long now..