AA99 v Capital One

[AA99]

AAAAAAAGH panic stations guys! Wait one

[blind-as-a-bat]

lets hope they either a) have got it wrong and/or B) stated an incorect ballence due to unlawfull charges;-)

[AA99]

Ok, this is what I received, 1 page back to back, envelope prepaid 1st class with orange bar codes on.

 

2 further letters received in March, one refers to "Under section 78 we are not required to provide a copy of the default notice and statement of default. However, we can confirm that a statement of default was issued on 10th February 2009."

 

The other letter refers to "..... a Statement of Default was issued on 10 February and your account was passed to Debitas to recover........"

 

 

 

[the_shadow]

Ok, t

 

Got to pop out for Spanish lessons so only a quick butchers but....

 

Looks kosher except... it should say a date... regs state it must be a DATE greater than 14 days, not a number but a DATE! prescribed wording also flakey (underlined words should be in bold to stand out more)

 

S.

[blind-as-a-bat]

technicaly it is invalid as it must state the date of remedy, not 28 days from the date of the letter.

 

In short cap1 cannot prove you had a clear 14 days from when you recieved it as it was sent normal post, it could have been sat in the mail room on the floor for 28 days;)

[diddydicky]

i'm not legally trained but i don't agreeon this one

 

a number of days provided it gives at lest 14 calender days from the date of service is in my opinion correct

 

what we need to see is the amount claimed in the DN - why have you covered it!

[AA99]

TBH, I need persuading not to just jump in and sue them. This a/c I didn't even bother to post up initially because of the £200 credit limit and it's been OH's biggest headache:mad: We have evidence and acknowledgement of our hardship in October 2008 and they refused £20 p.m. on an I&E form:mad: Also have 124 recorded calls received in 94 days from November to February

 

I am treading particularly carefully with OH's accounts as he is on permanent incapacity benefit (mentally & physically) and he is only calm because I have convinced him I'm doing a good job with OC's and Caggers;)

[diddydicky]

what was the default notice of 10 feb about? did they issue two?

[blind-as-a-bat]

i'm not legally trained but i don't agreeon this one

 

a number of days provided it gives at lest 14 calender days from the date of service is in my opinion correct

 

what we need to see is the amount claimed in the DN - why have you covered it!

 

no, it gives 28 days from the date the letter was dated/written, that has no bearing on when it was posted, or served if you like.

 

the regs are quite clear a DN MUST give a DATE by wich the breach must be recified, not less than 14 days after the expected date of reciept.

 

The date the letter was composed has no relavence what so ever, in an ideal world of course

[diddydicky]

no, it gives 28 days from the date the letter was dated/written, that has no bearing on when it was posted, or served if you like.

 

the regs are quite clear a DN MUST give a DATE by wich the breach must be recified, not less than 14 days after the expected date of reciept.

 

The date the letter was composed has no relavence what so ever, in an ideal world of course

 

i'm sorry but still disagree

 

service is deemed to have taken place 3 working days after 1st class post and 4 days for 2nd class so even if posted 2nd class would be valid

 

i honestly do not think that a court would rule the DN deficient in these circumstances

[diddydicky]

bear in mind that this poster does not want to jump in and make a fatal mistake and i think to challenge the DN as faulty on this basis would backfire

 

we are all expounding the fact that judges should take the commonsence view and sometimes we forget we are biased because we have our caggers hats on#

 

if we take our caggers hats off and put our judges hat on it has to be said that 28 days to rectify a breach is more than adequate and actually shows the creditor in a better light

 

now take your judges hat off and put your caggers hat back on

[blind-as-a-bat]

bear in mind that this poster does not want to jump in and make a fatal mistake and i think to challenge the DN as faulty on this basis would backfire

 

we are all expounding the fact that judges should take the commonsence view and sometimes we forget we are biased because we have our caggers hats on#

 

if we take our caggers hats off and put our judges hat on it has to be said that 28 days to rectify a breach is more than adequate and actually shows the creditor in a better light

 

now take your judges hat off and put your caggers hat back on

 

The DN does not conform to the regulations, so is invalid, but that does not mean i dont agree with you, what i am getting at is the dates on the letter are insuficiant, as the date of writing is irelavent, I stated in an ideal world.

 

This is one of the reasons i hesitate to post, i will tell the OP how it is to the letter of the regs, thats all i can do, it has to be up to the OP from there on to decide.

 

You are correct most judges may deem it enough, but the fact remains it is wrong and therfore does not meet the regs, which is all i was saying.

 

 

The whole thing about DN,s is a joke if you want my real view, as how can you put a time limitation on something without proof of postage, which is frequently ignored in court anyway, so there may as well be no dates at all on the DN, because they are meaningless without a provable point of referance:rolleyes:

[diddydicky]

do you have a link to regulation with regard to the manner in which it is written?

[blind-as-a-bat]

Anyway leaving that be for now, what is 1.5% of £200? £3?

 

Thats what clause 2 of the agreemant states, just before it refers to a section 11 that does not seem to exist:confused:

 

Now the OPs first post states-

 

OH opened this account in May 2005 and had a credit balance from March 2006 to May 2008. It was used, regrettably, to withdraw £200 cash in June and of course the cash advance fee of £6 plus interest took him over the limit, that's when the charges started. I immediately paid the over limit amount in August as requested but since that time charges are now at £120.

 

So the question is how much in credit was the OP,s OH, if it was £3 or more, it would have coverd the fee.

 

now if that is reading how i think it is, it does not add up, in view of which I have a feeling there is not a cat i hells chance of the amount on the DN being correct anyway:rolleyes:

 

Unless the terms doubled, have you been sent historical and currant T&C,s AA99

 

If so is that the case it was 3% when you drew the £200?

Edited June 4, 2009 by blind-as-a-bat

[blind-as-a-bat]

do you have a link to regulation with regard to the manner in which it is written?

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

[lexis200]

i'm sorry but still disagree

 

service is deemed to have taken place 3 working days after 1st class post and 4 days for 2nd class so even if posted 2nd class would be valid

 

i honestly do not think that a court would rule the DN deficient in these circumstances

Just being pedantic in case a newbie looks in - 1st class is classed as two working days, not three (if it can't be proved otherwise)

[blind-as-a-bat]

Just being pedantic in case a newbie looks in - 1st class is classed as two working days, not three (if it can't be proved otherwise)

 

 

Just to be just as pedantic it depends whos first class, RM is two, or was last time i looked, but UK mails first class can be 5-31 days, if you believe the date on the letter inside it;-)

[lexis200]

Yes, you do wonder how they manage to carry on with such a poor service. It's a shame it only seems to afflict DCA's though:rolleyes:

[AA99]

Sorry about deleting the amounts, didn't want to reveal too much. Basically, the Default Notice dated 8 Jan 09, showed a balance of £372.13 and an overdue amount of £129.56

 

the Statement of Default dated 10 Feb 09 showed a balance of £372.13 and an overdue amount of £32.80

 

I was in credit balance of £9.48 from March to Oct 06, and credit balance of £18.96 from Jan to May 07

 

Really appreciating all this input, thank you very much

[blind-as-a-bat]

Ok im getting a bit confused now, when you say credit ballence i read that as you did not owe anything and your account was actually +£18.96 meaning you had £218.96 available to use as it where, am i reading that right:confused:

 

I cant help feeling we are at crossed purposes here, as if that was the case how did you end up overlimit:confused:

[blind-as-a-bat]

Something to add to the list, Cap1 claim to have complied with your sec 78 request, and refered to section 3 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983 regarding what may be omited

 

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

 

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,

hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the

Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

Now i read that as the 'true copy' MUST include EVERYTHING the Consumer Credit (Agreements) Regulations 1983 state, except that wich mentioned in and after that paragraph eg-

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

 

Now scedule 1 of the Consumer Credit (Agreements) Regulations 1983 states

22. All types including provisions for charges on default.

An indication of any charges payable under the agreement to the creditor upon failure by the debtor or a relative of his to do or refrain from doing anything which he is required to do or refrain from doing, as the case may be.

 

I see no referance to that being allowed to be omited, and i dont see it in that copy they have sent.

 

Wether Cap 1 like it or not that means they hve not complied with your SEC 78 reqest to the letter of sec 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983 as they claim, and as you believe your ballence at default was largely down to default charges, it is reasonable you wish to see what they should have been, both now and when you signed up for the card to make sure they are both correct and reasonable

 

So by there own argument Cap 1 are still in default of the CCA request the way i see it, and you are justified for wanting the info, wich they appear to be witholding.

Edited June 4, 2009 by blind-as-a-bat

[AA99]

No, sorry, I used up that credit balance to pay a couple of bills, thought it easier than trying to get a cheque at the time , only had 35p credit when the £200 was withdrawn.

 

BABat, I was charged £6 cash advance fee and £1.34 interest fee - new balance £206.99 on 13 June.

 

I paid £6.99 on 4 July but they'd already slammed £12 over limit charge on 27 June so I was over my limit again, and so on, and so on.

 

Unless the terms doubled, have you been sent historical and currant T&C,s AA99

 

If so is that the case it was 3% when you drew the £200?

 

I haven't formally requested any paperwork because I have every bit of paper from the day this account was opened. Cash withdrawal then was 1%, and then it was mysteriously shown on statements only as 1.873% in Oct 06, as soon as I spent the balance in Jan 08, it showed as 2.272%, and then in May 08 it showed as 27.260%, I have a cross between monthly rates and apr's and I have no idea I just do not want to pay 100% on a one-off debt of £200 in ridiculous charges and interest rates on top of, on top of, on top of

[blind-as-a-bat]

No, sorry, I used up that credit balance to pay a couple of bills, thought it easier than trying to get a cheque at the time , only had 35p credit when the £200 was withdrawn.

 

BABat, I was charged £6 cash advance fee and £1.34 interest fee - new balance £206.99 on 13 June.

 

I paid £6.99 on 4 July but they'd already slammed £12 over limit charge on 27 June so I was over my limit again, and so on, and so on.

 

 

 

I haven't formally requested any paperwork because I have every bit of paper from the day this account was opened. Cash withdrawal then was 1%, and then it was mysteriously shown on statements only as 1.873% in Oct 06, as soon as I spent the balance in Jan 08, it showed as 2.272%, and then in May 08 it showed as 27.260%, I have a cross between monthly rates and apr's and I have no idea I just do not want to pay 100% on a one-off debt of £200 in ridiculous charges and interest rates on top of, on top of, on top of

 

thanks, it makes sense now, the main thing is that all the amount that was in the default seems to be made up of charges That 'True copy' is a joke as highlighted in my last post (there is probebly more, but just one is enough, more so as it is so relavent).

 

Whether you asked for it or not they should hve supplied both historic AND current T&C's for the account in responce to your CCA request, if i remember rightly, i would have to check just in case im wrong, but i think that is correct as its a variable account.

 

So unless anyone disagrees with my interpretation in post #141, cap 1 are subject to restritions of 78(6) until they supply the correct documents.

 

That still leaves the issue of proving they where attached to that front;-)

 

Now only the origanal would prove that, but a court would go on the ballence of probebilaty, which at the moment is clear Those T&C's dont belong to any agreemant as they stand:-)

[diddydicky]

technicaly it is invalid as it must state the date of remedy, not 28 days from the date of the letter.

 

In short cap1 cannot prove you had a clear 14 days from when you recieved it as it was sent normal post, it could have been sat in the mail room on the floor for 28 days;)

 

equally the letter could be dated 1st april say rectify the breach by 20th april and be posted on the 17th april!!

[diddydicky]

no, it gives 28 days from the date the letter was dated/written, that has no bearing on when it was posted, or served if you like.

 

the regs are quite clear a DN MUST give a DATE by wich the breach must be recified, not less than 14 days after the expected date of reciept.

 

The date the letter was composed has no relavence what so ever, in an ideal world of course

 

there is no such thing as "expected date of receipt" the rules quite clearly state documents are deemed to be served 3 or 4 working days after posting according to 1st and 2nd class post.

 

I agree that proof of posting is the key- however in civil courts it is presumed that a statement of when something was posted is taken to be honest UNLESS the other side claims otherwise in which case it is the accuser who is put to proof of a claim of dishonesty.