Cap One tell ICO they have sent me everything

[willtheywontthey]

Regarding Capital One issues many months ago:

 

1. penalty charges - about £400 and

2. Phone calls

 

Capital one at the time agreed to pay 'goodwill' gesture but made no reference to phone calls so I did not accept.

 

Since then I noted a few more complaints along the way - many of which the FOS since said was not for them to adjudicate on BUT they still make comments which strikes me as a bit unfair??

 

They cut-down my complaint to 4 main issues in the end. Some of this info may assist you in your FOS complaint or make you realise FOS waste of time?? I wil note the min relevant points only...

 

1. default charges

2. Request to suspend all telephone contact

3. debt recovery action

4. enforcibility of the credit agreement

 

1. default charges

 

Cap One says that where X (me) incurred a charge that exceeds the amount considered by the OFT to be reasonable, it was willing to refund the difference. Section 3.4(4) of DISP 3 states that we can end our consideration of an aspect of a complaint if a financial firm has made an offer which we consider fair and reasonable in all the circumstances, and that offer remains open for acceptance. My present view is that Cap One's offer meets those criteria and that we should not consider this aspect of the complaint any further, pursuant to DISP 3.3.4 (4)

 

(I guess this means I do not get 400 pounds penalty charges back then - the offer they gave me initially? I cannot recall getting the 'difference' either?? Or is this 'to come'? Actual compensation less than if I'd have ccepted many months ago the goodwill payment and kept suffering their calls)

 

2. Request to suspend all telephone calls

 

I have given this very careful consideration indeed, as it seems this, more than almost any other issue, is the one that has caused the greater part of the rift between X and Cap One. My starting point here is that when X applied for his credit card he did provide the contact number. I am at least satisfied that X originally consented to contact etc etc. Clearly, however, events subsequently caused him to change his mind and request that Cap One stop using the telephone.

 

(the itty gritty bit!!)

 

What I have next considered is whether this was a reasonable request, and whether Cap One was entitled to refuse to act upon it. If X's motivation for wanting to cease telephone contact was solely to prevent Cap One from pursuing him for the overdue amounts on his account, then I do not consider that to be reasonable request. However, I do not beieve this was Xs motivation.

 

X has said, and I accept what he says to be genuine, that on number of occasions when he received telephone calls and answered in Welsh, his native language, the response from the caller made him feel ridiculed and abused. It seems to me that when a person perceives that he or she is being disrespected, even if that was not the specific intention of the caller, then it is not unreasonable for that person to ask for the calls to stop altogether.

 

As a consequence, therefore my overall finding on this aspect of the complaint is that X was entitled to request that Cap One stop telephone contact with him and remove all of his numbers from its records. I consider that the bank's refusal to comply with this reasonable request amounted to maladministration and unfair treatment, for which X is entitled to be compensated.

 

(He then says later on in letter about this to give me £250 'for the distress and inconvenience arising from Cap One's refusal of his reasonable request that it stop contacting him by telephone'.)

 

3. Debt recovery action

 

The starting point here is that financia firms are entitled to take reasonable steps to recover money that is owed to them. Provided they do not do anything that might be deemed a breach of their obligations - under the relevant provisions of the Banking Code - to deal with customers sympathetically and positively, any agreement they seek to reach with a customer, including whether to suspend interest, is generally a matter for banks' commercial judgement, something with which we generally do not interfere, in the absence of maladministration in the exercise of that judgement.

 

It is accepted that what is considered "sympathetic" and/or "positive" may be subject to differing interpretations, depending on the point of view of the parties involved, and the extent to which changes of circumstances occurred through events within customers' overall control, as opposed to being imposed on them. Furthermore Capital One has to balance its need to adhere to the provisions of the Banking Code with its legitimate entitlement to recover monies owed to it.

 

I have already made a finding that Capital One shoud not have refused X's resonable request that it stop using th telephone to contact him, including for the purpose of debt recovery. But this aside, I am not persuaded that the Bank has breached any duty to X under the Banking Code, such that would warrant paying him separate compensation.

 

(I stated many regs eg penalty charges, no valid cca etc etc)

 

If the complaint is settled on the basis of the recommendations I will be making in due course, I am satisifed that X will still owe Cap One a substantial amount of money, and it is reasonable to expect that he should repay money he has borrowed of his own vlition, and accrued a benefit from.

 

(How come he's alowed to say this but yet not check / comment on valididty of a cca and hence legitimate or not???)

 

So it will be necessary for Capital One and X to seek to agree a new repayent arrangement that strikes a resonable balance between X's present circumstances and Capital One's right to recover a legitimate debt. In all likelihood, this process will have to be conducted in writing, but the terms of any such arrangement are not a matter for me, but for X and Capital One to negotiate between them, and if X and Cap one accept my overall findings, it would not bind them to any particular arrangement.

 

(why is fos stating debt IS legitimate all the time??? If I accept the fos 'deal' am I committing myself to coming to some form of 'arrangement' because of this section??)

 

4. Enforcibiity of the credit agreement

 

It may be helpful if I explain that when the term "enforceable" is used in connection with a contract, what it actually means is "enforceable in a court of law"; that is, where one party to a contract (ie Cap One) seeks to rely on the terms of the contract to obtain a judgement in court against another (ie X).

 

In my view this aspect of X's complaint would be unsuccesful because we do not normally deal with complaints that would be better handled by a different body, such as another complaints schee, by arbitration or the courts. Section 3.4 (10) of DISP 3 expressly povides for this Service to decline to investgate a complaint that, in the opinion of the Ombudsman, is more suitable to be dealt with by a court, arbitration or another complaints scheme.

 

In this context, the most appropriate forum to deterine whether X's credit agreement is enforceable under the Consumer Credit Act 1975 is a court. Typically, a lender would be the party initiating court action against a default borrower, and it would then be for the borrower (ie x) to enter a counter-claim arguing that the agreement was unenforceable, for the various grounds X has put to us.

 

(now am I imagining this or is the FOS assisting me here in setting out clearly what I could do next??)

 

There is no real dispute here that X has chosen to use his credit card faciities with Capital One over the years, without any real doubt about what the terms of his credit card agreement were and without raising any mention of the technical 'defects' he now cites as a reason why Cap One should not make him repay the debt.

 

(Cap One will love using this now won't they!)

 

The question of enforcibiity (or otherwise) would seem to be moot for the time being because it does not appear that Capital One has sought to enforce the agreement in court, at least not yet. But in any event, the FOS is not a court of law and is not, therefore, the most appropraite body to test the claim X is making in this regard.

 

In the event that Capital One takes proceedings against X for repayment of the debt, then it will of course be for the court to decide whether or not the agreement is enforceable at law. X will be free to make his arguments afresh to the court regarding enofrceability, should he wish to do so.

 

We do not continue to look into a complaint where, in our view, it has no reasonable prospect of success under our terms of reference. Accordingly, and for the reasons I have already explained, I do not consider that this element of X's complaint, or any other element that is contingent on it, should be considered further by this Service, pursuant to DISP 3 3.4 (10)

 

Other matters

 

Finally, I have considered the question of information lofged with credit reference agencies. Banks are entitled, indeed obliged, to register credit information about their customers' accounts, adverse or otherwise, that is factually correct. X has argued that the information Capital One has recorded is factually incorrect because of the charges levied on his account. However, given that I am satisfied that capital One has made - and implemented (eh - what - have they - I never knew that!!!) - a fair and resonable settlemet offer in respect of the chaarges, the issue of credit information is one which, like the charges themselves, I do not need to consider further.

 

 

(Next we have section called other matters!!)

Edited January 15, 2009 by willtheywontthey

[rory32]

Their decision on the default charges is not legally binding and personally I would just proceed to court with your charges claim.

[MARTIN3030]

The banking codes are a voluntary one and therefore even if there has not been any breach in the eyes of the FOS,it does not prove that the charges are in proportion to their losses on a breach.

 

Following your pm,some posts here have been moderated.

You should know however,that it is a consumers choice and right to decide themselves, if they wish to become members of public internet forums,that are there to assist and help with issues they may have.

It should bear no implication or refelection on any decisions,by the FOS or any other regulator,in their investigations of your complaints,whether you are an active member of CAG or any other public forum.

The debt collection industry,as well as Financial institutions of course dont share that view-they would rather sites like CAG did not exist.

 

 

Hopefully you will return and update the thread once its known which path you have chosen to go down.

Your use of the FOS complaints procedure does not in any way prevent you from taking the matter to through the County Courts.

If you do choose to do this,then be sure to follow pre action Court protocols in giving the defendants adequate notice and a final opportunity to resolve matters to your satisfaction beforehand.

Edited February 7, 2009 by MARTIN3030

[willtheywontthey]

final decision:

 

Person X (me) was entitled to make that request (phone calls to stop), and Capital One should reasonably have complied with it........entitled to be compensated for the resultant distress and inconvenience' (into the account mind you!)

 

250 pounds compensation is basically what they are paying themselves for their unfair treatment of me.

 

My piece of advice to anybody asking Capital One to stop making calls is to make a 'reasonable' request. Simply sending 'stop calling' will not work I fear with FOS. You will need to provide enough evidence (letters?) that you have sent saying please stop phoning because... (health, stress, family / relationship issues, work - anything reasonable I guess is up to FOS interpretation ). Also stating you are always willing to write to them also assists your argument but not I imagine just this argument. Although in my opinion it should be.

 

Again you need to convince FOS that you are not merely trying to avoid debts... I was stubborn I stopped paying because they phoned me and refused to stop. Now the account is in silly overdue mode and I'm now having to usethe unenforceable CCA method. If they had stopped calls the amount would nto be as it si and would have been manageable.

 

Another issue Capital one tried to raise was the fact I made use of template letters and cut/paste from Internet. I do suggest you therefore counter this argument by also sending personalised letters to Capital One?

[MARTIN3030]

The use of internet templated letters is no more of an issue than that of their own templated threatograms....certainly it is no defence to counter what they did.

A good result-its not just the money,but also the knowledge that it is another complaint to add to many thats been upheld.

[MARTIN3030]

Theres not really much the FOS can do about the CRA entries-this is more of an issue for the ICO.

[willtheywontthey]

The ICO are investigating non-compliance with DPA but the cra's are not too much of a concern as I do not intend borrowing money for a few years (!) and my mortgage is staying with same provider ono cra checks fortunately!!

 

What I'm completely flummoxed by is that I did not think I had to sign anything at the 'end' stage and that the FOS decision was final on the company rgeardless if they or I agreed???

[willtheywontthey]

so if they have sent me everything as they state and this everything includes a small signature piece on an application form as being a cca does this mean they should not be able to 'find' one in future? Also how come their 2nd cca they sent me (the made up one) was not included in my sar which they have now said included everything??

[Guest Old_andrew2018]

Bump

[willtheywontthey]

Cap One have completely confused me as they have sent me a letter asking for details fo when I may have had/made calls for purpose of transcripts - this would aid them in findingthem they say...

 

I guess that's Capital One's way of putting onus on me to say when calls made... do I have to or can I say simply 2007-2009 as memory serves it's when payment stopped calls started - obviously.

[willtheywontthey]

Have been told by Capital One that they are not obliged to 're-send' the default letter - is this true?

 

Also because of ICO pressure they are now trying to opt out of providing telephone logs / details and the ICO also states they are allowedto ask me to give them more details. Added to that the ICO now say Capital One have obliged with SAR but I keep asking ICO how this can be if they have yet to provide these call logs.. then we go round in circles.

 

Any advice.

 

I'm probably going to do another SAR to them to see if something different turns up second time round.

[willtheywontthey]

I'll try and find some other quotes I used from other bodies / organisations when I complained about calls to FOS but for now but this is an updated article and is in today's Times. Basically do not give information to anybody who calls you.

 

Use the quotes in letters to banks who harrass you. Say you are concerned about fraudulent calls etc and it is reasonable that they oblige. Keep writing (they will ignore you and it's handy evidence) to OCs / DCAs a few more times as evidence - also say you are always willing to communicate in writing ( ;0 )

 

Then complain to FOS - wait 2 years - and they should say bank being unreasonable and award you damages - paid into your account (!) - then refuse if it messes up your 6 year stint.

 

I have not had any calls for such a long time now and I refused £250+ fine from Capital One as FOS wanted to award it direct to account.

 

 

Banks on the line over bad call practice - Times Online

 

The main bit:

 

The Banking Code tells customers: “Never give your account details or other security information to anyone unless you know who they are and why they need them.” If a customer discloses such information, they will probably be held liable for any fraudulent transactions on their account.

[willtheywontthey]

Experian:

“ Do not be tricked into giving anyone details that could help them access your account”. :lol::lol:

 

CIFA:

“Treat your personal data as ‘confidential’ . Don’t give it away easily”

“Fraudsters may try to dupe you into believing they are from banks or other companies”

 

Mr Peter Hurst (Chief Executive of UKs Fraud Prevention Service):

“No one should be complacent about identity theft. The effect on victims can be devastating”.

 

UKFPS:

“ID fraud is logged as Britain’s fastest growing crime”

 

Consumer Direct :

“The use, and high cost, of premium telephone numbers can be a central feature of a [problem].”

“Don’t provide any financial or other personal information.”

 

Capital One's advert some time ago with Ian McEwan or somebody?

 

“ID theft is Britain’s fastest growing crime”

 

 

I'm sure there must be more about if you search about. I should have kept sources and dates but didn't. Took me ages to find these quotes.

 

[willtheywontthey]

ps ignore the sales pitch at end for Creditexpert

 

in an article week ago (source = experian so make sure you have a salt mine handy!) - see point 3!

 

Money Central - Times Online - WBLG: Ten things you (probably) didn't know about your credit record

[willtheywontthey]

Anybody knowthe answer to this? Tried ICO for clarificaton but no reply yet.

[Guest Old_andrew2018]

Sorry just noticed your thread, however I dont have an answer for you so I am replying to BUMP your thread

[the_shadow]

Hi I'm assuming that crapone are stating you need to provide specific dates when the calls were made before they can provide you with the details of the phone call.

 

...and I'm assuming that the ICO state capital one are allowed to do this.

 

 

Personally I would think a strong letter to the capital one asking a simple question...

 

"In light of your comments about requiring data/time range to be able to provide call details I require clarification prior to either commencing court action or possible further complaint with the ICO, Please can you tell me when a call is placed to yourselves, how is that call linked back to my account?"

 

If they say it isnt then they are correct in that its not really a relevant filing system as such and you'll need to provide details of the call time/date.

 

If however they state its stored against your account number or name then the ICO must be TOLD to get the information from capital one. It will clearly be a "relevant filing system" and as such you are entitled to that information/data

 

Just my opinion.

 

S.

[cab1ne]

i thought a S.A.R asked for "ALL" data they hold on you.

 

so to ask for specific dates on phone logs etc, would be breaching "s10 DPA" and the "ICO" would be as the same "in breach" of his own regulations.

 

cab

[the_shadow]

i thought a S.A.R asked for "ALL" data they hold on you.

 

so to ask for specific dates on phone logs etc, would be breaching "s10 DPA" and the "ICO" would be as the same "in breach" of his own regulations.

 

cab

 

It should be, hence my question about how they link the call to the accounts

 

S.

[cab1ne]

It should be, hence my question about how they link the call to the accounts

 

S.

 

thanks for the clarity shadow (the penny has dropped)

 

cab

[willtheywontthey]

Sorry for delay - did not spot this post and the replies.

 

I will send a letter stating the above and will see what they say - thanks

 

I have also had my second SAR which I sent (in hope they'd send my default letter 'accidentally') but had same response that they do nto have to send me a default letter as part of a SAR?!!!

[the_shadow]

Sorry for delay - did not spot this post and the replies.

 

I will send a letter stating the above and will see what they say - thanks

 

I have also had my second SAR which I sent (in hope they'd send my default letter 'accidentally') but had same response that they do nto have to send me a default letter as part of a SAR?!!!

 

That is probably true, lenders dont tend to store default notices as they issue so many, they tend to record in a line on the status log you get sent that a default was sent on a specific day and they should record the postage used to send it too if they want to substantiate it in court later on.

 

 

S.

[willtheywontthey]

Thanks for that - so the ICO will not expect them to have kept the Default Notice then?

 

If they have not got it then how can they ever try to refer to it in court>? they cannot I hope simply say here's a log that says we send it and it was written in correct manner with correct language and dates etc?

 

They say they don;t have to provide it. Can I argue against this statement of their then? If I then find they have to then I guess they'd have to? (does that make sense?)

[the_shadow]

Thanks for that - so the ICO will not expect them to have kept the Default Notice then?

 

If they have not got it then how can they ever try to refer to it in court>? they cannot I hope simply say here's a log that says we send it and it was written in correct manner with correct language and dates etc?

 

They say they don;t have to provide it. Can I argue against this statement of their then? If I then find they have to then I guess they'd have to? (does that make sense?)

 

They can say what they like in court, they just have to convince the judge, same as you.

 

They will just show a template letter, state this is what it would look like and this entry on the database shows it was sent.

 

If its not stored against your account then no they dont have to provide a template of what it would/did look like. the DPA allows you to all INFORMATION held on you, not specific bits of paper.

 

S.

[willtheywontthey]

so why all this scrutiny of DNs if it comes down to a case of "dare" in court?