Bit of help needed. Texter v Capital One

[RichardM]

I could do with a bit of advice on this one please.

 

I helped a neighbour and good friend of mine a couple of years ago when she got into severe financial problems and then had a heart attack to make matters twice as bad. One of the companies she got into debt with was capital one.

 

They had added £180 of charges to take her well over her limit before I got involved and got the account frozen. By the time I got round to sorting everything, her balance was £396. I offered them £113 as part payment which they declined but said that they would accept £250 as full and final settlement. I agreed to that and paid it.

 

As I had started to go after MBNA and Lloyds myself, I decided to go after Lloyds and Cap One on her behalf as well. Mine are simple as a I don't owe them anything. Her's is complicated by the short payment. I've claimed back £180 from Cap One and got this response.

 

Thank you for taking the time to write to us about the charges we've added to your account. Your letter has been passed to me, as I'm the manager of the executive office and deal with complaints. I understand you think these charges are unlawful and I'm sorry you feel this way.

 

To explain, we automatically add late payment charges if your payment is missed, arrives late or isn't enough to cover your minimum payment. We'll add overlimit charges if your balance goes over your agreed credit limit, which was £200.

 

When we opened your account, on 22 September 2003, we sent you a credit card agreement which stated these charges. By signing and returning this to us, you agreed to the terms and conditions for the account.

 

Our charges are in line with other banks and financial institutions and as you are probably aware the OFT are not challenging the right of Banks to charge default. fees, but merely the level of those charges. [The OFT has said it believes default fees of £12 are likely to be fair]. We disagree with the OFT's analysis and believe that our current charges are both fair and legal. However, as a matter of goodwill, I've reduced the amount of each charge added to £12 by refunding a total of £72 to your account. This will reduce the amount of the balance that you owed so your credit file will be updated to confirm a lower settlement amount of £74.33.

 

I hope I've explained things clearly, but if you do have any other questions, please write to me again. You'll find my address in the leaflet I've included, which also explains our complaints procedure.

 

Please accept my apologies for the inconvenience this has caused and I’m sure we’ll be able to put this experience behind us.

 

That, to me is not good enough. For one thing, he is suggesting that she still owe's them money, which she doesn't. Capital One, in fact took, in percentage terms, a far greater proportion of the sum on offer than any of the other creditors took, (I offered everyone a proportion of a one off sum which I put up and she's paying me back at 0% interest) and yet still want to try and recoup some more.

 

Can someone have a scan of my proposed reply and tell me whether I'm being bloody minded or any other suggested alternative response. Thanks.

 

Dear Mr Udy.

Thank you for you for your letter of July 11th. I regret that far from helping me to put the matter behind me, it makes me even more determined to achieve the reimbursement that I demand.

 

Your letter is factually incorrect. I also do not deny that the banking organisations have a right to recoup their costs in the event of them suffering a financial loss due to a customer breaching their terms and conditions. However, what the OFT actually said is that in common law, the banks may only recoup their actual costs. The £12 quoted is the maximum that they would expect to see as a charge, which would only be appropriate where there has been substantial manual intervention on the part of the bank. The details that you provided following my SAR suggested no such manual interventions. Since you gave no indication of any manual intervention I have to presume that everything was done automatically, in which case your costs were substantially less. As this is the case the whole amount charged was unlawful and, therefore, reclaimable in common law.

 

I would also put it to you, that the payment of £250 made to you on 8th July 2004 was a full and final settlement on the account. This is supported by your own documentation supplied under the SAR. To suggest, therefore that I owe you any amount is erroneous.

 

At no time did I make any transactions whilst over my credit limit. The credit limit was breached only due to your imposition of unlawful charges, and continued to increase solely due to continued imposition of those charges. The offer of £250 in settlement of the account was made on the understanding that you had operated my account in a lawful manner, which you have clearly failed to do. I, therefore, reserve the right to take action to recover the sum that you unlawfully took from me.

 

You leave me with no choice but to demand that the £180, which was taken under false pretence, be returned to me. Additionally, that any default which has been placed on my credit record is removed, and the account shown as satisfied. I would point out that this should have been done at the time that full and final settlement for the account was accepted.

 

Failure to respond by July 30th, unconditionally offering full reimbursement of £180, will result in a claim being filed in the County Court, together with a claim for interest under section 69 of the County Court Act 1984.

[lickthewallfatboy]

first of all-scrap the bit about the £12 maximum(£2-£3 is mooted as being closer to the mark)

 

also,it might be an idea to just to stick to the Letter Before Action template and adjust it to your figures.It's tried and tested and proven to work.Just work to the proceedure laid out in the FAQ's and you'll get there in the end!!

[RichardM]

They were responding to an LBA.

 

Are you suggesting that I just ignore the response and go straight to court claim, allowing them the get away with the impression that she still owes them £146, despite having accepted a full and final settlement and have a default on her record?

[lickthewallfatboy]

if you have written proof that the account was cleared,as you suggest in your first post,then you have nothing to worry about.Just drop Mr Udy a very curt note to this effect,and that if they don't stop hassling you for it,you'll take them to court for that as well....and tell him that if they issue a default against her,you'll take them for defamation.

 

I have found that Capital One are a bunch of total incompetents who are fine when they are working to a script,but force them to deviate from that script and they flounder big time.I'm having great fun at their expense at the moment.Right hand literally does not know what left hand is doing!!

[lookinforinfo]

Well, I rather liked your letter Richard. I'd send it off, all of it, and see what they

say. No offence LTWFB.

[lickthewallfatboy]

none taken:D

 

just thought it looks good when they get all the same type of letter landing on their desks at the same time,and they realise everyone is getting their information here,and isn't going to be a pushover......

[RichardM]

Template letters are wonderful if everyone has exactly the same situation. They do not. Whilst the Prelim and LBA letters will cover most posts, once you get past the LBA, most will have to amend their letters to match their own persoanl circumstances. You only have to look through these forums and read some of them to see that is the case, particularly when it comes to acceptance and declining of offers.

 

You'll notice that I have only used the template only as a BASIS for every one of the letters that I have written to various organisations. I hate receiving them, so why should I send them. My experience, as a customer relations officer for four years with a railway company, was that a well written customised letter got far more attention than something copied and repeated ad-infinitum.

[alanfromderby]

Firstly, I would just make the following comment about template letters. Yes, I agree that they are a pain, and very often they are not read. However, I would suggest that using the template letters, with as few modifications as possible, is advantageous in the context of this forum.

 

Clearly banks are getting inundated with letters from different sources requesting refunds. We know that some of the banks already differentiate between the letters they receive, and know the ones that originate from this forum.

 

They are also aware that the process outlined on this forum is structured, legally watertight, and will end up in court if they don't settle. They also will be aware that whenever they have gone into court against CAG members, they have found them to be well prepared, and usually having supporters in tow.

 

Don't underestimate the power of this.

 

As far as the Capital One situation is concerned, this is a difficult one. You state that the payment you made was in full and final settlement. Unfortunately, my gut feeling is that this has to work both ways, and if you now want to seek redress for unlawful charges - the whole matter is then overturned.

 

Please note that this is a view based on personal logic - not legal training.

 

I think it does raise a point that needs to be emphasised about such settlements. As part of any agreement, it is vital that you include a clause that the debt be marked as "settled" on the Credit Reference files.

 

Apart from that issue, the letter from Robert Udy is the standard response - refuse, but offer 7 more days, and it is possible that they may settle.

[RichardM]

Thank you Alan.

 

The point I was trying to make about template letters to LTWFB was that they can only take you part of the way, but they are invaluable. Every one of them has to be tweaked to individual needs and there is no template letter for declining a first offer.

 

As far as the full and final settlement issue is concerned, my own thoughts are that it was made on the understanding that both parties had operated within the law and that Capital One had a legal entitlement to the sum that they claimed ie £396. Obviously we now know that they were not complying with the law and that over 50% of the amount that they were claiming was unlawful, but this unlawful act greatly affected the way that I dealt with their claim, i.e. I paid them a hell of a lot more than I would have, had I known they were acting in an unlawful manner.

 

Someone in the general section has suggested that I go after the difference between the amount that I paid them and the original balance before they started applying charges and get the account shown as settled in full. It's only £60 but it's £60 that she could do with.

[alanfromderby]

Possibly a percentage settlement may be arguable - in the end I would expect that if you are persistant enough you will brow beat them in to agreeing to your terms. The bottom line is that if they want to have the argument then they can have it in court along with evidence of their costs for breach of contract.

[callumsgran]

going back to your proposed letter Richard, being pedantic you have asked for any default to be removed, then asked for it to be marked satisfied! you cant have both, continue with the removal part, ok? sorry to be picky and i dont wish any disrespect to you at all but they may look at it and simply mark it satisfied when you really want it removed.

[RichardM]

No problem.

 

Thanks for the advice.

[TBeckett100]

cillitbanger, i think he was trying to get the defasult removed and the account satifsied for closure. closed accounds are marked settled or satisfied.