Davey77 vs Capital One *** WON ***

[davey77]

Thanks! Almost there...

 

Hows this sound?

 

"Thank you for your email.

 

I can formally accept your offer of £674.01p on the basis that the following criteria are complying with in full, in that:

 

a. Any obligation to pay the remaining balance on the above account are discharged in full

 

b. Any references pertaining to this same account are cleared from all Credit Reference Files including late payment markers and comments.

 

Subject to these conditions being accepted in full your offer of £674.01p will be accepted and i will no longer pursue the matter now, or in the future.

 

Yours sincerely, me"

[banker_rhymes_with]

Hello Davey77!

 

Ah, I hadn't realised there was a balance outstanding.

 

OK, in that case, I think the way ahead will be to push for them to pay you, but to include ending the issue once and for all because they do not have an Agreement worth squat.

 

They may dig their heels in, in which case this will probably need to roll on into Court. But if it does, then maybe ask the Judge when it does to declare the alleged Agreement unenforceable under s142.

 

Maybe tell Wendy that, and see if you can wrap this up Today on all counts, i.e. they Pay you and agree to end hostilities for ever.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Looks OK to me, but maybe get a 2nd opinion form one of the Legal bods on CAG just to make sure you have not missed something they can later re-open to annoy you with.

 

Cheers,

BRW

[davey77]

Yes thats the thing.. but it's a small amount so hopefully they will see sense knowing i am going to cause them problems in future! As you say, their agreement may not have stood in Court and they would lose more in costs anyway.

[davey77]

time is of the essence at the mo.. where are the legal bods? I can't think of anything else myself but don't want to leave it open to problems later certainly.

[banker_rhymes_with]

Hello Davey77!

 

The main Legal Bods are off-line at the moment, so best suggsetion is to see what you can find on CAG that covers Full & Final Offers.

 

But your letter is probably OK, the key issues are you want an end to this, and you do not want any smelly bits left on your Credit Files.

 

Cheers,

BRW

[davey77]

ah ok, thanks for that. Yes im not going to agree to getting £600 odd if in 3 months time they are after me again based on the same flawed agreement. That doesn't make sense so i'll stick to my guns.

[davey77]

lol Smelly bits lol Well, got to pop to the shop (while it's sunny) so will keep updating as things come in. Thanks for the help folks! Laters

[banker_rhymes_with]

Hello Davey77!

 

ah ok, thanks for that. Yes im not going to agree to getting £600 odd if in 3 months time they are after me again based on the same flawed agreement. That doesn't make sense so i'll stick to my guns.

 

I think you must stick to your guns, because my guess is they'll not want to send you a Cheque otherwise.

 

Indeed, they were probably intending to deduct the Refund from the Balance, and then sell the Debt to a DCA, after they write off the remainder against Tax.

 

I'd maybe hold off sending anything until you get a good 2nd opinion on what to say.

 

I do now suspect they had no intention of getting their Cheque Book out, so the Offer was just more smoke and mirrors to get that removed from the main Debt to perhaps give them or a DCA a clearer run at you for the Balance.

 

Going back a bit, do you have the Default Notice, and was that valid?

 

If it wasn't, then all they can claim from you, assuming the alleged Account has been Terminated, is any Arrears that were fairly due before Termination.

 

If that is, say, £100, then that's the Total of what they can ask for. Maybe agree to knock any true Arrears off the Refund to show willing?

 

IOW, your little letter to Wendy Underpants should mention their problems with enjoying the benefits of s87, making it clear that they can forget about the Balance anyway, as it's lost forever (assuming the Default Notice is indeed invalid).

 

If you see what I'm getting at, you must get the next Letter tight and hard hitting if you want to end this and get a Cheque in time for Davey77's Christmas!

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[davey77]

Hello Davey77!

 

 

 

I think you must stick to your guns, because my guess is they'll not want to send you a Cheque otherwise. That would be totally unacceptable for sure!

 

Indeed, they were probably intending to deduct the Refund from the Balance, and then sell the Debt to a DCA, after they write off the remainder against Tax. Swines!

 

I'd maybe hold off sending anything until you get a good 2nd opinion on what to say.

 

I do now suspect they had no intention of getting their Cheque Book out, so the Offer was just more smoke and mirrors to get that removed from the main Debt to perhaps give them or a DCA a clearer run at you for the Balance. Yes not what i would want.. a dumb DCA to have to reply to next year.

 

Going back a bit, do you have the Default Notice, and was that valid? Yes i have and it was valid and correctly sent out.

 

If it wasn't, then all they can claim from you, assuming the alleged Account has been Terminated, is any Arrears that were fairly due before Termination.

 

If that is, say, £100, then that's the Total of what they can ask for. Maybe agree to knock any true Arrears off the Refund to show willing?

 

IOW, your little letter to Wendy Underpants should mention their problems with enjoying the benefits of s87, making it clear that they can forget about the Balance anyway, as it's lost forever (assuming the Default Notice is indeed invalid).

 

If you see what I'm getting at, you must get the next Letter tight and hard hitting if you want to end this and get a Cheque in time for Davey77's Christmas!

 

Yes i see what you mean. Afraid i already sent out the original and quickly written email back to Wendy StarrshipEnterprise in haste. Didn't want to leave it as time is the issue. No reply as of 14.15 today so i guess i will have to wait and see. Although will work on possible reply scenarios in the meantime.

Cheers,

BRW

 

Thanks for all the help!

Edited December 4, 2008 by davey77
spelling

[banker_rhymes_with]

Hello Davey77!

 

Are you sure the Default Notice was OK? i.e. did they allow you the Statutory time based on Date of Service, was it set out in the Prescribed way, and were the Arrears stated accurately?

 

If you are seeking a Refund...then wouldn't that mean the Balance was not accurate, and in turn the Monthly Payments based on that Balance would be inaccurate?

 

If so the Arrears would be inaccurate making the Default Notice demand for Arrears inaccurate.

 

Either way, see what they come back with.

 

If they get hissy, then it's more likely that a Refund via Cheque was not actually on offer, they were probably thinking more along the refund to Balance plan, and sale to DCA etc.

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[davey77]

I am pretty sure the default was ok.. i 'll check but i beleive it was.

 

Just had this back from Miss Wendy:

 

Thank you for responding so promptly.

 

In response to your request:-

 

1. In addition to our offer of £674.01, I can advise that Capital One is prepared to offer a further £817.41. The sum of £1491.42 offered as the total settlement will clear your outstanding balance. The balance is therefore discharged in full.

 

2. I am unable to agree the removal of the default on your credit file. Capital One has a responsibility and obligation to accurately record your credit file with the credit reference agencies. You acknowledged you were in financial difficulty in November 2006 and that you would not be able to maintain the minimum monthly payments to your account. You then made nominal payments. As stated, we are under an obligation to accurately record your credit file and therefore recorded your credit file with late marks, until your account defaulted in July 2007. I cannot therefore agree to the removal of the default on your credit file as part of the settlement of this claim.

 

I should be grateful if you would confirm your acceptance to the above, in order that I may notify the Court accordingly.

 

Yours sincerely

[davey77]

Im sure some will say that the default removal matters a lot but i have loads of them already! lol

 

What do you guys think about me responding with 'i wish the credit file to marked 'satisfied/settled' instead. I could live with that as i am going to have at the very least two more of those. Probably more as the months go on.

[davey77]

It does mean there fore they did intend to put the offer towards the account in question and not send me a cheque tho.. but swings and roundabouts as they say. I would own Cap1 anything would I?

[davey77]

Yeah i know.. "clear my outstanding balance".. a balance i do not actually owe due to an improperly executed agreement but again i am trying to reach a resolution so looking at the best option for me at this time. (Sound like a laywer now!)

[banker_rhymes_with]

Hello Davey77!

 

OK, that confirms they had no intention whatsoever of getting the Cheque Book out!

 

The paragraph about their mates at the CRAs was just Debt Industry brollacks.

 

She's letting herself get carried away again thinking they have an Enforceable Agreement.

 

If there is no binding Agreement, you owe them nothing. Likewise, you owed them nothing, so all late Payment markers and the Default should be removed, full stop.

 

Time to find that Default Notice I think!

 

If that is invalid, then you may yet turn the tables on them...adding Unlawful Rescission of Contract to the next Claim.

 

Likewise, if that is invalid, then you owe the Arrears only (that assumes they even have an Agreement).

 

If your Credit File is trashed, then they can't really trash it any more, so that issue is no real Threat against you.

 

I'd hold off responding until you've found that Default Notice.

 

Cheers,

BRW

[davey77]

The default is ok.. just checked. My notes indicate they were no issues with it.

I don't want to cut my nose off to spite my face here. I've been battling for 2 yrs and this is the closest i have got to any good news.

 

Don't forget this has been struck out and i am not sure if she realises that yet.. it could alter things if i delay and it becomes known.

 

Am considering this as a reply:

 

"Thank you for your email.

 

After considering the matter further i can agree to Capital One's offer with a compromise that my credit file is marked settled due to my confidence in the said agreements flawed conception and therefore the inappropriateness of Capital One to mark my credit file in the first instance: No properly executed credit agreement = no permission to process data with the credit reference agencies as i see it.

 

But as a matter of expediency i am prepared to forego such details at this time will accept the offer stated if my credit files are marked accordingly (as no balance would be owed on accepting the offer anyway it would be a slightly more accurate statement.)

 

Yours sincerely,

me"

[banker_rhymes_with]

Hello Davey77!

 

Fully understand.

 

The pressure is on, because if they have yet to twig that the Claim has been Struck Out, they may change their tune. So, striking while the Iron appears to be still hot is an option to consider very seriously. If that goes to plan, you can forget all about Capital One by the Weekend.

 

Flip side is they find out Tomorrow, and change their tune the moment they do.

 

Also, they could be reading this, and so know all too well the weakness of their position, and know they would rather not go to Court anyway. It would be Small Claims Track, they'd have Barrister's Fees to Pay regardless, they could well lose, they could well still end up Paying you £674.01, they may be forced to wipe the nasty Data off the CRAs, and then they may find you also want compensation for Defamation because of this adverse Data relating to a non-Agreement with zero Data Consent.

 

Indeed, if that Default Notice has any flaws, you could add even more problems for them, such as an additional Claim for Unlawful Rescission issues!

 

So, maybe fire off the email, but plan for the worst...i.e. how to best manage the possibility of re-starting the Claim, or how to combat a full-on Claim from them for the whole Balance.

 

Make sure you have a strategy to come back out fighting. If they have no idea about the Claim, they may back pedal anyway. But, if they think this has to be wrapped up fast, you could get a binding email accepting your terms before you have had your 2nd Cup of Tea Tomorrow!

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[davey77]

Well, should the worst case scenario happen and it goes back to square one then i won't back down either and will continue fighting (and costing them money) in the new year. I've come this far and i can go further if i have to!

 

Won't get anything further tonight i suspect but i will contact the Court tomorrow regardless to find out what my options are for reinstating the Claim should that become needed.

 

Looking forward to my second cup of freshly ground coffee beans (tea!?) tomorrow! Thanks for the help! D

[citizenB]

The penny could also finally ahve dropped re the financial situation you are in. If they add barristers costs to those as well the only people who are going to end up paying them is Capital 1

[davey77]

The penny could also finally ahve dropped re the financial situation you are in. If they add barristers costs to those as well the only people who are going to end up paying them is Capital 1

 

They better drop their pennies.. otherwise i am going to toss my cookies all over them!

[davey77]

"Thank you for your email of yesterday evening.

 

I can confirm that the balance outstanding on your account will be refunded in the sum of £1491.42, and that your credit file will be amended to record a zero balance, and that it is satisfied.

 

On the basis of the above, I will also now contact the Court to confirm settlement of the claim in full and that the hearing scheduled for Monday 8 December may be vacated. I would be grateful however if you would also telephone the Court to confirm that the claim is settled.

 

If you have any further queries in relation to this claim, please do not hesitate to contact me.

 

Yours sincerely

 

Wendy Starr

Legal Specialist

Capital One Bank (Europe) plc"

 

"Dear Madam,

 

I formally accept your offer to clear the outstanding balance on card number **** **** **** **** with an obligation to pay discharged in full and to place Settled/Satisfied on my file with the Credit Reference Agencies.

 

Please copy the details of which for my records and send to my postal address at the earliest opportunity.

 

Yours sincerely, me"

 

Ok.. now what?! She rings the Court in a minute to find out it's been vacated already and... revokes the offer or calls it a day. I immediately replied accepting the offer so.. guess we wait and see!!!???

[banker_rhymes_with]

Hello Davey77!

 

Ok.. now what?! She rings the Court in a minute to find out it's been vacated already and... revokes the offer or calls it a day. I immediately replied accepting the offer so.. guess we wait and see!!!???

 

I think you are in a stronger position than you think.

 

If they kick up, just front up to them and say it's a simple Court mix-up, and the Claim will be going ahead, see you in Court when you'll be after a real Refund via Cheque, and it'll be for more than the original Claim now you can see they have no Enforceable Agreement.

 

Cheers,

BRW

[davey77]

Already prepared an email to that effect stating i will reinstate the Claim or start a new one from scratch should the reply (if i get one) be difficult. Surely it's sense to look at profit margins and quit while they are ahead?! But you never know. They obviously wouldn't have caved in if they truly felt they had a genuinely strong case.

 

Thanks for that though.. I'm sure today will be a conclusion eventually.

[banker_rhymes_with]

Hello Davey77!

 

I think if you look at this from their position, they are not in a strong position at all.

 

1. They have no Agreement apart from a Copy of an Application Form with no Prescribed Terms, and a wishful Witness Statement trying to big that up into something it isn't.

 

2. You are not a vexatious litigant, so the Court is highly unlikely to award any Costs against you even if you lost. Their Threats about a Barrister were just hot air to undermine your confidence.

 

3. It should go Small Claims Track in any event, where Costs are intended to remain low.

 

4. They know they are holding their argument together with rubber bands, bits of string and faith.

 

5. They'll have to Pay for someone to attend Court, plus all of the Travel costs to get down to sunny Devon. That alone could cost them the thick end of 1k, and they would not get that back from you.

 

6. They know they'll probably not get anything back from you anyway, as you've made that clear I think.

 

7. Your Claim is valid so, if they lost, and the Court also elected to declare their so called Agreement unenforceable via s142, they'd be looking at Paying you at least the £700 odd that you are claiming, plus anything else you can add, Unlawful Rescission etc, a Claim for a Refund of Interest you should never have needed to Pay etc.

 

Thus, to fight this one, Capital One are staring at Costs that will exceed 1k I'd think, and to that they may need to add a true Refund for what you are claiming.

 

If they Won, they'd get nothing, and would have to Pay out maybe 1k in Costs to see you off.

 

If they Lost, they'd still get nothing, and would have to Pay out maybe 1k in Costs just to enjoy losing, and would then have to Pay you £700++.

 

They Win = 1k in Costs = -£1,000.00

 

They Lose = 1k in Costs + £700 Payment = -£1,700.00

 

So, it's a no Win situation for them whatever happens if it does go to Court. Whereas getting you to accept the virtual Offer on the table is actually a Win-Win situation for them.

 

This is because they get to avoid any Court Costs, and can close the books on you and they can Write Off the Balance against Tax.

 

What I'm saying is...if they get silly, then they are just being silly. They know they don't want to go to Court, so my guess is they won't say a word, and you'll get a Letter saying it is all sorted, have a nice day.

 

So, if they come back to pull out of the Offer, then give them no mercy after that. Go for a proper Refund via Court and in the form of a Cheque not a virtual Refund that suits them.

 

Cheers,

BRW