Max-Cap1-Debt/CCA-Progress-Thread

[maxine989]

Hiya.

 

I took it out Feb 2006... did an on line application then signed the forms when they came through the post.

 

They stalled me for ages before sending me this copy of the CCA, sending letters before they actually sent it saying 'we can not action your request because you have not signed the letter' and all that.

 

I am not sure when they starting using the 'we will set your credit limit'. It would be interesting to compare it with another from around the same date.

 

Do you really think they have been making knock up ones in oder to fulfill the CCA requests??

 

Either way I am still unsure on whether to continue to make the £1.00 per month token payments, being as they continue to add charges and default notices. If I carry on making the payments, I am in a way reinforcing the contract.. but on the other hand, it seems that they have a valid agreement anyway so I may as well make the payments in order to look good if we go to court for non payment. what to do??

[maxine989]

Hi all

 

Just an update.

 

Today I had a letter back in response to my LBA:

 

'Dear Maxine 989

 

Thank you for writing to me about the default sums we've added to your account. I understand you think these default sums are unlawful and I'm sorry you feel we've treated you unfairly.

 

We added late or failure to pay default sums if your payment was missed, arrived late or wasn't enough to cover your minimum payment. We also added over-limit default sums if your balance went over the agreed credit limit, which is £500.

 

When we opened your account in February 2006, we sent you a credit card agreement which stated these default sums. By signing and returning this to us, you agreed to the terms and conditions for the account, including the default sums.

 

The Office of Fair trading (OFT) hasn't challenged the right of banks to charge default sums, just the level of those default sums. Capital One reduced the level of default sums from September 2006 to £12.00 each, following the publication of the OFT recommendation. However, I appreciate that you've incurred previous default sums at the higher rate, and would like to address this.

 

I've reviewed the account and, as a matter of goodwill, I'd like to reduce the default sums we've added to £12.00 each. This amounts to £32.00. If you'd like to accept this offer, please sign and return the settlement form I've included. Once I get it back I'll add these funds to your account'.

 

My claim is for just over £600.00 so I wont be returning the settlement form. Next step is N1 stage I assume.

[beachcomber60]

Right... here goes. Fingers crossed this works... I've been piddling around with photobucket for about an hour.

 

http://i121.photobucket.com/albums/o217/maxine989/cap1cca010-1.jpg

http://i121.photobucket.com/albums/o217/maxine989/cap1cca011.jpg

 

 

If I were you I'd remove your signature & that barcode asap.

 

Beachy

[Old Cogger]

Hi all

 

Just an update.

 

Today I had a letter back in response to my LBA:

 

'Dear Maxine 989

 

Thank you for writing to me about the default sums we've added to your account. I understand you think these default sums are unlawful and I'm sorry you feel we've treated you unfairly.

 

We added late or failure to pay default sums if your payment was missed, arrived late or wasn't enough to cover your minimum payment. We also added over-limit default sums if your balance went over the agreed credit limit, which is £500.

 

When we opened your account in February 2006, we sent you a credit card agreement which stated these default sums. By signing and returning this to us, you agreed to the terms and conditions for the account, including the default sums.

 

The Office of Fair trading (OFT) hasn't challenged the right of banks to charge default sums, just the level of those default sums. Capital One reduced the level of default sums from September 2006 to £12.00 each, following the publication of the OFT recommendation. However, I appreciate that you've incurred previous default sums at the higher rate, and would like to address this.

 

I've reviewed the account and, as a matter of goodwill, I'd like to reduce the default sums we've added to £12.00 each. This amounts to £32.00. If you'd like to accept this offer, please sign and return the settlement form I've included. Once I get it back I'll add these funds to your account'.

 

My claim is for just over £600.00 so I wont be returning the settlement form. Next step is N1 stage I assume.

 

 

YEP NI route they will repay you straight away according to others, but make sure you apply the correct % rate plus 8%, most people use purchase rate I understand but if you know default use that. Only alternative possibly complaint to FSA but I understand it is the long route, suggest read other threads er CAP1.

[maxine989]

Hiya... Beachy will remove the barcode and signature... I didn't think about those.

 

I've begun filling in the N1 and getting the POC sorted... but I can not find anywhere that gives prices for the costs (depending on how much you are claiming)... I've been going round in circles for about an hour. Anyone know??

[maxine989]

photobucket scans have been removed, will edit new links in once I have blanked out the barcode and signature and re-scanned them in. Thans for the advice.

[maxine989]

Guys... I've done my N1 and am claiming contractual interest (as I stated in my LBA)... or the 8% in the alternative.

 

I claimed contractual interest once before on a credit card claim, back in 2007... and won. But I am using a new computer since then and don't have all the bumf from before to look back on.

 

I am not sure how to amend my POC accordingly.

 

Do I put something like this:

(2) Payment of the said sum of £404.00 and interest of £324.47 (29.9%) applied by the Defendant thereon. The claimant claims this interest back on the basis of reciprocal interest.

 

This is the whole POC so far:

 

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 XXXXXXXXXXXXXX (“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 totaling some £404.00 between 22/05/2006 and 29/7/2009. Particulars appear from Schedule 2.

 

18. On the 20th August 2009 and the 3rd of September 2009 the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them.

And the Claimant claims:

 

(1) A declaration that the sums totaling £404.00 have wrongly been applied to the Account

 

(2) Payment of the said sum of £404.00 and interest of £324.47 (29.9%) applied by the Defendant thereon. The claimant claims this interest back on the basis of reciprocal interest.

 

(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 £57.94 and at the daily rate of 10 pence until judgment or sooner payment. (4) Court costs of £65.00

 

I believe that the facts stated in these particulars, comprising of 4 pages, are true.

 

 

Signed

 

Dated

[maxine989]

Right... here goes. Fingers crossed this works... I've been piddling around with photobucket for about an hour.

 

http://i121.photobucket.com/albums/o217/maxine989/cap1cca017.jpg

 

http://i121.photobucket.com/albums/o217/maxine989/cap1cca018.jpg

 

re-scanned the CCA in... did this look kosher and do you guys think it is enforceable??

[maxine989]

Jeeeeeeezzzzz

 

I have juts had a mega long conversation with Debitas.

 

They basically admitted that they do not read any of the letters we send… they are not interested in anything other than collecting a payment.

 

They ignore anything you write or say, other than the offer of payment.

 

For once they couldn’t cut me off… which is what they usually do when I refuse to go through security and begin to ask them why they continue to call when they have been asked verbally and in writing not to. This time they didn’t cut me off because I called them… and I went through security and had a VERY LONG conversation (yes I know I was the one paying for it… but it was worth it to hear the splurge of nonsense they spouted).

 

Once I had cleared security the main part of the conversation went something like this:

 

Me: Can you put a big note on your screen stating that I have requested that you do not call this number.

 

Debitas: But we need to make contact with you.

 

Me: Then write to me… respond to my letters.

 

Debitas: We need to make an arrangement with you to prevent your debt being moved onto a third party.

 

Me: I have sent copious amounts of written correspondence… letters, income expenditure sheets, complaints, token payment offer letters…

 

Debitas: We have not received any letters but we need to come to an arrangement on this account to prevent further action being taken.

 

Me: But you can not take further action as this account is in dispute… I have requested to see a copy of my credit agreement… and I also am claiming back my charges equalling over £700 which is more than the debt.

 

(I have received a CCA from Cap 1, but am not sure if it is enforceable as yet… but I didn’t tell them that bit)

 

Debitas: You see miss Moneypennyless, this account is about to get passed onto a third party who will collect the debt if we don’t set up an arrangement today.

 

Me: But you are not able to pass the debt on while the account is in despute and I have been trying to set up a token payment arrangement for 6 months… I have been paying £1.00 for 6 months and have been writing to you explaining my financial circumstances and loss of income for 6 months.

 

Debitas: We have not received any payments from you and we need to set up an arrangement today. You need to pay £17.oo today and…

 

Me: (butted in) But I have explained in my letters that I can only afford to make token payments at this time.

 

Debitas: We have not received any letters and we need to make a payment arrangement on this account.

 

Me: You are not listening, I have sent lots of letters asking for you accept a token payment and asking you to stop calling, it is upsetting my partner and children… you phone at tea time at bed time… in the morning when I am trying to get them ready for school… I have complained and written… blardi blar

 

(I waffled on for ages and he did not speak.. I then noticed a clicking noise behind a very silent background… I stopped talked and the call was silent for about 60 seconds)

 

Me: So have you cut me off now?

 

Debitas: No Miss Moneypennyless I am still here and we need to come to some sort of arrangement on this account today. You need to make a payment of £17.00 ands…

 

Me: … Listen, I have already explained that I am only able to offer token payments of £1.00 per month at this time… Most of out other creditors have agreed to this yey, you continue to ignore my letter and harass me by phone when I have asked you not to call…

 

(I then went on about how we are behind with our mortgage and all that caboodle for several minutes with him being silent again… then that clicking/silent noise again)

 

Me: SO?

 

(a long pause)

 

Debitas: (with busy background call centre noise) Yes Miss Moneypennyless, if I can take the payment today and…

 

Me: You are not listening… I have no money… half the time I have to ask my mother to buy nappies for my baby and our house is awhisper away from being repossessed…

 

Debitas: Have you filled in an expediture sheet?

 

Me: yes… several and sent it to yourselves and Capital One directly… I have written… hang on while I look on the computer and check… one, two three… ten letters in total. And I have been making regular token payments via internet banking.

 

Debitas: I don’t know where you are sending the letters, but we have not received any of them and we have not receive any payments.

 

Me: right… this is the address I sent the first letter to P.O Box 6459… (then he interrupted me)

 

Debitas: Miss Moneypennyless, we need to make an arrangement… you need to pay £17.00 today and…

 

Me: arrgghhhhh… I can’t believe you are not listening to me (child crying in background, another hanging off my leg)… this is why I do not like dealing with on the phone and want you to correspond with me in writing because you are not listening to what I am saying and it is difficult for me to talk on the phone when my children are demanding my attention. Have you or have you not been receiving my £1.00 payments because if you are saying that you haven’t had then I may as well stop paying them.

 

Debitas: The last payment we received was on the 7th of August 2009.

 

Me: Earlier you said, you had not received any token payments.

 

Debitas: We have not received a payment in September.

 

Me: But earlier I asked you if you have received any of the regular token payments of one pound and you said you had not received any letters or any payments.

 

Debitas: We need to collect a payment of £17.00 today and then I can make a payment arrangement with you.

 

Debitas: But I have told you that I can ONLY OFFER £1.00 PER MONTH (said very slooowwwwwlyy).

 

Debitas: If you would like to Fax your income and expenditure sheets to us and we will try to make an arrangement with you… when will you send the fax?

 

Me: yes, give me the fax I will fax all the letters.

 

Debitas: No, Miss Moneypennyless you do not need to fax the letters we just need to see your income and expenditure and we can then try and help you.

 

Me: What’s the fax number then? And will someone be reading what I send?

 

Debitas: Yes Miss Moneypennyless we will receive the expenditure sheets and you will get confirmation it has been received from your end. The fax number is 01158433328 and also 01158436167.

 

Me: Thank you, good bye

 

Debitas: I hope thing improve for you in the future, thank you for your call.

 

Me: Yeah, whatever!

 

So EVERYONE…. Fax this number again and again and again with all the letters they ignore…

 

01158433328 or 01158436167

 

I intend to waste a lengthy phone call faxing them copious amounts of unwanted letters… I haven’t got a fax machine, but I intend to beg borrow or steal one over the weekend and have some fun with this fax number. Grrrr…. Please, everyone do the same!!!!

 

Ooooo… they really get my goat. They have to be THE most annoying company of them all.

 

Grrr… Debitas!!!

[maxine989]

Result...

 

Had this letter today!!

 

http://i121.photobucket.com/albums/o217/maxine989/cap1settlement023.jpg

 

http://i121.photobucket.com/albums/o217/maxine989/cap1settlement024.jpg

 

So I got my charges back, plus the 29.9% contractual interest!!!! Woo Hoo!!!

 

I assume my next step is to try and get the default information taken off my credit file... am I best to continue with the court claim until Cap1 agree to do this (as they have stated in their letter that they will not amend my credit file)? Any ideas folks??

[exchange]

Great result maxine989. Should this now be marked 'WON' or is there more to it?

[the_shadow]

Result...

 

Had this letter today!!

 

http://i121.photobucket.com/albums/o217/maxine989/cap1settlement023.jpg

 

http://i121.photobucket.com/albums/o217/maxine989/cap1settlement024.jpg

 

So I got my charges back, plus the 29.9% contractual interest!!!! Woo Hoo!!!

 

I assume my next step is to try and get the default information taken off my credit file... am I best to continue with the court claim until Cap1 agree to do this (as they have stated in their letter that they will not amend my credit file)? Any ideas folks??

 

Ok its a choice thing, if the default is important then DO NOT STOP THE CLAIM as once you have it'll be even harder to get removed.

 

Might be worth responding to them and reminding them that even tho this payment is classed as a gesture of goodwill as its clearly paying off the total claim you feel a judge would see through this vindictive recording of a default on your record and force them to comply with your request.

 

Ensure you put in the letter the fact that they are signees to the banking code and as such should follow said code as its now legally binding under CPUTR2008, the relevant section is below:-

 

Consumer Protection from Unfair Trading Regulations 2008, specifically Regulation 5 states:-

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either

paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(a) it concerns any marketing of a product (including comparative advertising) which creates

confusion with any products, trade marks, trade names or other distinguishing marks of a

competitor; or

(b) it concerns any failure by a trader to comply with a commitment contained in a code of

conduct which the trader has undertaken to comply with, if—

(i) the trader indicates in a commercial practice that he is bound by that code of

conduct

 

 

 

The banking code states:-

 

 

 

“13.6 We may give information to Credit Reference Agencies about the personal debts you owe us if: the amount owned is not being disputed”

 

 

S.

[maxine989]

Thanks for that Shadow.

 

I would like them to remove the default... as, although I am not intending on applying for any credit in the forceable future, I will need to renew my mortgage at some point and so would prefer to have the defaults removed if it is something they are able to do.

 

I will compile a letter to Crap1 and include the information you have mentioned, thanks.

 

[maxine989]

Great result maxine989. Should this now be marked 'WON' or is there more to it?

 

Almost exchange... I just need them to comply with getting the defaults removed.

 

Soooo glad I have had the charges and interest returned though... that clears my balance back down to zero... phew...

[Bevvyboy]

Maxine989, I'd be very interested in whether your CCA with capone is enforceable as I have an identical aggreement dated 06.03.07. I requested this a couple of months back and they sent me the usual current T&C's etc. I then replied stating that this was not a true copy of my CCA and that I considered the account to be in default and stopped monthly payments. This week I received an identical agreement to yourself so would be interested if any member thinks it is enforceable.

 

Just a thought the right to cancel box is slightly unalligned on the top right of your agreement - mine is unalligned (to the right) by about 5mm !!! - could this have been added later ? - Surely not even Crapone would do that, or would they ???

[flossiebear]

Hiya all

 

A quick update... Capital One returned all my charges (plus 29.9% interest and court costs)... putting the balance of my card to zero... and the remainder owed to me was sent in a cheque.

 

They are being stubborn about removing the defaults notices sent to credit agencies and haven't budged on that, despite me sending letters and keeping the court claim open.

 

I received the Allocation Questionnaire today and am not sure whether to plod on... or write to the court and say the claim is settled. I would like the defaults removed... but it is not as though I am wanting to get any credit in the near future, so maybe it doesn't really matter???

 

Bevvyboy - I am not sure whether my CCA was enforceable or not, but I am happy to have the balance down to zero and leave it at that now... so shall not be worrying about that anymore.

 

M x

[Bevvyboy]

Bump

[maxine989]

just realised that the 'flossiebear' post was me logged in as my dad... doh!! Anyway... so yeah... This case is now all done and dusted... money back and account closed.

 

Phew!!!

 

Thanks for all your help peeps. This post can now be moved to **won** please.

 

Thanks... Maxine

[the_shadow]

just realised that the 'flossiebear' post was me logged in as my dad... doh!! Anyway... so yeah... This case is now all done and dusted... money back and account closed.

 

Phew!!!

 

Thanks for all your help peeps. This post can now be moved to **won** please.

 

Thanks... Maxine

 

Maxine,

 

Well done!

 

Did they remove the default in the end Maxine? I know you stated you didnt think it was critical.

 

S.

[maxine989]

No they didn't.

[the_shadow]

No they didn't.

 

I take it the claim has now been discontinued?

 

S.

[maxine989]

It's got the the AQ stage... so I called the court up to say it had been settled. Just got to put it in writing today...

[the_shadow]

It's got the the AQ stage... so I called the court up to say it had been settled. Just got to put it in writing today...

 

The choice is yours but the only way to get the default removed is to continue.

 

If you are happy with the outcome tho then fair enough

 

S.

[maxine989]

to be honest, I can't really afford the AQ fee... so... kind of have to settle at that really.