Davey77 vs Capital One *** WON ***

[davey77]

Just had this:

 

Dear x

 

I sent through to Torquay and Newton Abbot County Court this morning a fax to advise that this claim has been settled and have just telephoned them to check they had received my fax.

 

The Court Clerk said they would appreciate receiving your written confirmation that the claim has been settled. I appreciate it may be difficult to fax a letter to them, but if you could send a letter and also telephone them to confirm the position, it would be appreciated.

 

Yours sincerely

 

Wendy Starr

Capital One Bank (Europe) plc

[banker_rhymes_with]

Hello Davey77!

 

Just had this:

 

Dear x

 

I sent through to Torquay and Newton Abbot County Court this morning a fax to advise that this claim has been settled and have just telephoned them to check they had received my fax.

 

The Court Clerk said they would appreciate receiving your written confirmation that the claim has been settled. I appreciate it may be difficult to fax a letter to them, but if you could send a letter and also telephone them to confirm the position, it would be appreciated.

 

Yours sincerely

 

Wendy Starr

Capital One Bank (Europe) plc

 

I'm fairly sure Capital One will be aware of the position, but that won't stop them closing this off, as explained above.

 

It would make no sense for them to back pedal now.

 

I think if you want this to be closed, you can achieve this and you can then move on and forget all about Capital One for ever!

 

Cheers,

BRW

[davey77]

I agree.. they must be fully aware of the hearing status but don't seem to be concerned and are sticking to their offer.

 

My reply has been that i will ring the Court shortly and also write them confirming settlement "based on the detail of our recent emails." I will copy that email and send to the Court with my letter.

 

I do think this is done and dusted but will await the postal confirmation. Once i have it in black and white on paper then i would say that's legally binding and i'll have that tea, i mean coffee!

[banker_rhymes_with]

I do think this is done and dusted but will await the postal confirmation. Once i have it in black and white on paper then i would say that's legally binding and i'll have that tea, i mean coffee!

 

Stuff the Tea and Coffee, have a large Beer, and a few others to go with it!

 

I think you deserve it.

 

Cheers,

BRW

[davey77]

ok you twisted my arm.. a beer it is!

 

Don't know why she wanted me to ring the Court. They said they had had the fax from Cap1 confirming settlement and there was nothing further for me to do. She seemed slightly puzzled why i would ring.

 

I am still going to print off the email from wendy and send it to the Court with a letter confirming everything. Can Wendy still be in the dark about the strike out? Surely not i would have thought. Anyways, no more to do today but to wait and see what the postman brings me tomorrow but probably Monday!

 

Cheers! D

[banker_rhymes_with]

Hello Davey77!

 

I think it's the result Capital One wanted, just to avoid the prospect of having to shell out hard Cash to go precisely nowhere.

 

I think you could've teased some money out of them but, I do, fully, and totally understand that getting one blood sucking banker off your back is a satisfactory goal all in itself.

 

I think it's all done and dusted now and, any second now we'll hear the Fat Lady singing...

 

...or is that strange ethereal noise Davey77 howling like a happy baboon after completing his 17th celebratory Pint?

 

Cheers indeed!

BRW

Edited December 6, 2008 by banker_rhymes_with
Can't Swpell...or Tripe!

[davey77]

Well, nothing in the post from Cap1, i doubt i really need that letter as the emails have been printed for future reference but all the same i would like it in writing. I will give them til Mon and if i don't get anything i will write asking for a written copy of the settlement.

 

(wasn't 17 pints.. but it was 1 or 2! )

 

I'll update this thread with any new that occurs and at some point will also add all the replies to defence etc which may help others with fighting Cap1 + others!

 

Cheers folks! Thanks for all the help!!

[citizenB]

I have just caught up with this, Davey. Well done, excellent news. Should you now have **WON** in the title:D

[davey77]

Thanks very much CB!

I think maybe i should have **won** but would like the settlement in writing (Just don't feel it's quite real in an email, old fashioned i guess) before i book the celebratory balloon flight for the summer!

[upto the eyeballs]

Excellent result.....Have another beer!

[angel_1]

fab results davey

 

well done and to all the posters who helped you here

 

rock and roll and cheers

 

angel x

[davey77]

Thanks Angel! Hope all is well with you!

[ccman]

Excellent result, congratulations!!!!!

 

[davey77]

Many thanks!!

[sosumi]

Brilliant Davey!!

Just read this through from your link - will post there too.

You (and BRW) have just made my day!

[davey77]

Brilliant Davey!!

Just read this through from your link - will post there too.

You (and BRW) have just made my day!

 

Thanks sosumi! (And for clicking the rep.)

 

Wrote to Cap1 yesterday to ask for a written copy of the settlement...

[citizenB]

 

Wrote to Cap1 yesterday to ask for a written copy of the settlement...

 

They will open your letter and groan......... Oh no !!.. :D

[lexis200]

Hi Davey77

 

Well done, I've read this with interest as I am one of the many others with an unenforceable capone 'agreement' (actually a blank application form!)

 

I was just wondering if you'd had written confirmation of the settled account and zeroed balance, and whether they'd marked your CRA files as you requested?

 

Lexis:)

Edited January 14, 2009 by lexis200

[davey77]

Thank Lexis. So you have a blank application form.. thats a good start. Mine wasn't even blank, they came up with the back pages too but still caved in so hopefully that bodes well for your outcome.

 

I wrote 15 Dec asking for the settlement agreement in writing. No reply. I sent another letter to the legal dept 2 days ago asking again. If i don't get a response i will email wendy starr of the legal dept. I won't let it go until i get it in writing.

 

I haven't checked the CRA files yet. Thought i would give it a month but yes, i will do that this week and check they have honoured their agreement.

 

As for the details of all this from LBA through to N1 and Replies to Defence i haven't forgotten and am still working on putting it all together here for others benefit.

[lexis200]

Thanks davey, I'm hoping it bodes well but they seem to like playing silly buggers:rolleyes: The fact they've sent a dodgy DN too should help:)

 

I'd be exactly the same - you want their settlement in your hand so to speak, not just on a computer screen!

 

Watching with interest, and crossing fingers for you that they do as they say and settle your CRA files:)

[amber2508]

Just read your thread through and wanted to say congratulations on your result. I bet it is a big weight off your mind.

[davey77]

Thank Amber! Yes it certainly is good to get rid of them although still wanting that written copy and that seem to be taken longer than i thought it would. Looks like an email to Wendy Starr will go off today

 

[ouch123]

Brilliant stuff Davey77 & BRW. Subbing for interest as I may have to go down this route too.

[davey77]

OK, while i wait for the letter (still waiting yes lol). and for the benefit of 'ocu123' and others here is the Court Process. Not in absolute detail but it should help those who haven't been through the Court/N1 route before.

 

LETTER BEFORE ACTION

 

Dear Sir/Madam

 

Re: Account No. **** **** **** ****

 

Thank you for your letter dated 29 February 2008.

 

Having reviewed the copy documents you have sent in response to my request under s78 CCA, I have come to the conclusion that no valid or enforceable agreement exists between us. This is because the only document I signed is a pre-contractual application form which does not contain any prescribed terms, or any other terms or statutory notices as required by the CCA.

 

The documents you have supplied do not comply with s61(1) or s127(3) CCA and are therefore improperly executed and totally unenforceable:

 

s61 CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

s127(3) CCA:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Further, the only document I have signed is a pre-contractual application for credit, which may or may not have been accepted, depending on your lending criteria. This was therefore an agreement that falls under s59(1) CCA and is consequently void:

s59 - Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

I therefore require a full refund of all payments made to you in the mistaken belief that a valid and enforceable agreement existed. I have calculated this figure to be £674.26p and I have enclosed a schedule setting out the details of my claim. I have also included statutory interest at the rate of 8% per annum from the date of each payment, and so require settlement in the total sum of £863.14p.

 

I also require that any adverse information provided by you in respect of this account to any credit reference agency be deleted from their records. If I do not receive an acceptable settlement proposal within 14 days of receipt of this letter, I shall issue court proceedings without further notice.

 

Since this letter is the first stage of intended court action, you are required under the general pre-action protocol of the CPR to send me any information I request. Please therefore supply me with a copy of any and all documents in your possession that you will be relying on as a defence to this claim. In particular, since the application form refers to information 'overleaf', I require that you send me a full copy of that original document, i.e. the front and the reverse', plus a true copy of the original terms and conditions. If you do not comply with this request, or send me written confirmation that no original copies of these documents exist, within the 14 days as specified above, I shall consider applying to the court for an order under Part 18 CPR.

 

 

Yours sincerely, me

 

 

 

The rest of the page tells you what to do depending on the reply such as requesting a judgement should the defendant fail to defend, accepting their proposal for payment (should there be any) etc

 

 

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0002.jpg

 

Notice from the court stating Cap1's intention to defend my claim (as expected.)

 

My POC (particulars of Claim.):

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0003.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0004.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0005.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0006.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0007.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0008.jpg

 

Well, they came up with the back of the Application form. Showing never to assume they don't have the docs you have been asking for over the previous 12 months! Still didn't make it an 'agreement' tho in my view so so i did reply of course, although first was the Allocation Questionnaire (AQ), we both had one as i recall and it's pretty straight forward. Here is Cap1s:

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0009.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0010.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0011.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0012.jpg

 

and then my Reply to their Defence:

 

 

 

 

This next link is what i had been sent in the past (s78 requests). The more recent address showing (applied for the card at the previous address): APR 35%.. charming!

 

So, on from the 2 July letter i said:

 

Gillian Charles

Capital One Bank plc

Legal Department

4th Floor

Loxley House

Station Street

Nottingham

NG2 3HX

 

8 July 2008

 

 

IN THE TORQUAY AND NEWTON ABBOT COUNTY COURT

 

CLAIM NUMBER – ******

 

Davey77 v CAPITAL ONE BANK (EUROPE) PLC

 

REQUEST FOR INFORMATION UNDER PART 18 CPR

 

Dear Ms Charles

 

Thank you for your letter of (2 July 2008), the contents of which are noted.

 

Further to the points raised in my reply to defence, a copy of which was sent to you on (12 June 2008), I am requesting that you send me true certified copies of the following original documents:

 

1)The full credit agreement document, containing all the terms of the alleged agreement (all clauses) and my signature, in support of the assertions made at paragraphs 10 and 11 of Capital One's defence, whereby it is alleged that I signed an agreement document that contained a 'Clause 10' and a 'Clause 23'.

 

2)The statutory first copy of the alleged credit agreement, that is required to be sent to the debtor at the same time as the credit agreement is sent to him for signature, as per s62.2 CCA. In this case, since it is averred in the defence that Exhibit A is the alleged 'whole' agreement, the document I require sight of is the original copy of Exhibit A that should have been sent to me as my copy of the alleged agreement.

 

3)The statutory separate notice of cancellation rights and cancellation form, in the required format, that was required to be sent to me in compliance with s64.1(b) or alternatively s62.2 CCA, together with documentary proof that a copy of this notice was indeed sent to me within the statutory time limits.

 

Please note that this request is made under Part 18 CPR, and that I require a response within 10 days of receipt of this letter.

 

Yours sincerely,

Davey77

 

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0015.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap1CourtPapers_0016.jpg

I believed i asked again for the information but didn't get anywhere.

 

Mediation later failed and so we got to this point:

 

We also have the witness statement from Cap1.

 

"...On the basis of the documentation enclosed with our witness statement and all information we have previously provided to you, we believe we have a strong defence and have instructed a barrister to attend the hearing on our behalf and who will be seeking an order for costs against you.

 

I would be grateful if you would confirm your position in relation to attending the court hearing and in relation to the claim in general. Would you please therefore telephone me urgently on receipt of this letter in order that we may discuss the claim in some further defail.

 

Wendy Starr, Cap1"

 

http://i157.photobucket.com/albums/t42/davey77_2007/Cap2.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap3.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap4.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap5.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap6.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Cap7.jpg

 

at this point we really go back to the beginning of this thread. As you will know i replied (although not realising FOS complaints are not charged until the 4th one but maybe Cap1 don't know what). Anyway, my rather unprofessional reply was:

 

" In reference to your letter dated 1 Dec 2008. The Court fee remission form had already been sent to the Court while i was awaiting a recent Income Support entitlement letter therefore there was an unavoidable delay in returning the documentation.

 

I have received from the Court this morning instructions which should finalise the hearing fee issue. This will be sent by first class post to them today (Wednesday 3rd December) enabling the hearing to go ahead for the 8th December as planned.

 

In relation to your request for a telephone conversation i see little reason to do so at this juncture having clearly stated my case on more than one occasion. I am confident your stance will be ineffectual considering the weight of evidence against the defendant in this matter as i firmly believe my case is arguable based on numerous flaws and technicalities of the documentation in question and inaccuracies in the Witness Statement.

 

With respect, the witness statement is compiled by a person who actually doesn’t have any direct knowledge of handling the suggested documentation itself first hand. Unless the legal team employed by the Defendant have personally been involved in addressing, stamping and arranging application forms (the alleged agreement) to be sent to consumers since 2003 which is an implausible scenario.

Therefore this Witness Statement is from someone who was not witness to the events relating to it but based on third party information therefore perhaps these ‘third parties’ should be called to account and to speak for themselves.

 

What was originally, or what was not, sent to me is only implied and suggested which can hardly constitute fact. Supposition as to what was received only relies on probabilities with terminology of ‘would have’, ‘could have’ and ‘maybe was received’ etc but not categorically ‘did receive without doubt’ at the time of application and so is hypothesis and not factual.

 

To quote from the Witness Statement:

 

“5.I.ii a separate declaration under the heading "Credit Agreement Regulated by the Consumer Credit Act 1974" and stating that the applicant (the Claimant) had read and agreed to be bound by the full terms and conditions of the credit card agreement with Capital One. On the reverse of this document underneath the heading "Consumer Credit Agreement regulated by the Consumer Credit Act 1974. These terms are taken from Clauses 8, 10 and 23 of the Terms and Conditions that you sign with us" there would also have been an extract of the key terms of the credit agreement including the prescribed terms for the purposes of Consumer Credit (Agreements) Regulations 1983;”

 

As suggested previously the highlighted wording being a another example of information based on third parties supposedly working for Capital One in 2003.

 

If the defendant wanted the Application form to become a properly executed agreement they should have placed the correct wording on the application form and not disregarded Consumers lack of legal knowledge. For an application form, in part, to become a Regulated Credit Agreement the correct wording should include the word ‘Card’: Regulated Credit Card Agreement as defined by Law:

 

“SI 1983/1553

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--

 

"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.”

 

S78 states "shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it".

The other document in my opinion being the original Terms and Conditions. The other Document can contain non-vital Terms, but it cannot contain the Prescribed Terms.

 

Therefore, no witness to the actual events, no properly executed credit card agreement as i am sure you are now aware that the Prescribed Terms must be contained within the four corners of the Agreement, they cannot be embodied within a second document. This requires the Prescribed Terms must be contained within a signature document and cannot be found within a second document. The second and separate document can include non-essential Terms that would form part of the overall Agreement, but those Terms must not include the key Prescribed Terms and so making the documentation supplied to the Claimant on previous occasions unenforceable as the Law stands.

 

The Consumer Credit Act 1974 s61(1)(b) is concerned with the Prescribed Terms. Failure to comply with this is fatal (at least for written Agreements made before the Consumer Credit Act 2006.

 

I therefore believe I can show to the Court that the alleged agreement has been improperly executed in more than one respect, and that the defendant’s interpretation of compliance with s78 is wrong.

 

I deny receiving any ‘leaflet’ with the credit card application or thereafter and which has been alleged contained the prescribed terms of the agreement and cancelation notice of which is irrelevant because the cancelation notice the Claimant should have received (but didn’t) should have been on a single sheet of paper due to the circumstances in which the documentation was signed. This renders the agreement, at best, improperly executed on a further count and at worst wholly unenforceable under s127(4) of the Consumer Credit Act.

 

For your information i must point out that the defendant will not be able to claim their barrister’s cost if the Claimants case is not successful.

 

During past mediation through the Court it was said that the Financial Ombudsman ‘decision’ (which was actually just an opinion of an Ombudsman employee and not an official Adjudication) in relation to my complaint with them gave weight to the defendants stance. Perhaps I worded my complaint incorrectly and left out certain important details (OFT Debt Collection Guidance/Banking Code infringements etc) which a new complaint to the Ombudsman, at a later date if prudent, would be beneficial should Monday’s Hearing be unsatisfactory? I understand the fee due by a creditor in such cases has increased since my previous complaint was issued to £450. For your information, this would be payable by Capital One and not myself.

 

My email address is above should you wish to add anything new before Monday's Hearing.

 

Yours sincerely, davey77

 

Then we know already how it goes.. struck out before the hearing due to the Court messing up my Fee Remission form, meanwhile Cap1 cave in via email a couple of days before the Hearing!

 

 

 

[ouch123]

This is very much appreciated Davey77. Thanks.