angel v cap1 won sort of

[angel1977]

Hi all, cap1 never fail to amaze me !!

I put in my claim through County Court and recived an acknowledgement from cap1 through the court they would defend the claim in full this was on the 3rd Sept

I recived a letter dated 4th Sept i that " Whilst we do not accept liability for your claim, i have in an effort to resolve this matter without the need for a court hearing, refunded your full claimed amount of £466.00 into your account. These refunds have cleared the balance on your account and left it £137.05 in credit. I have arranged to send you a cheque for the credit amount, which you should recive within 21 working days."

 

then they go on to say these refunds are a gesture of goodwill blah blah, then they say if i cannot keep in line with the agreement from now on " i would respectfully request you consider closing your account"

 

This is a standard reply i assume ?

 

The very next day i got another letter dated 06/09/2009 stating that

" As of the 6/9/2009 you have defaulted and you owe us £341.55"

 

So they have now defaulted me and closed my account and are going to notify the credit agencies that i have defaulted.

 

I am sure they cannot do this.

The first letter was dated 4th sept and told me they had credited the amount to my card and now longer owed them money.

The second letter defaulting me was dated 6/9/2009 2 days after they credited my account,

 

Then i got a letter from Debitas dated 7/9/2009 saying i owe them £12.00 as they have been instructed to collect the outstanding blalance i owe on my cap1 account, then goes on to say " Clearly, having an outstanding amount and a default on your credit file is upseting"

 

People i am hopping mad, whats going on and what can i do about it? There is no way on this earth they are gonna get away with this.

Please help

[BankFodder]

Amedn the claim to include breach of DPA. They are in breach as they have a duty to record accurate infomation about you. Did their payment include interest and court costs? If not, then continue the claim

[BankFodder]

In fact, thinking more about it, I think that you have a perfectly good basis for continuing the action anyway even though they are settling as you have a good reson to continue. The CPRs - I can't remember which one say that you are entitled to continue despite settlement without rsik of costs if there is a continuing reason. the fact that they are settling out of court - good will etc and yet continuing to treat you as if you were in debt is sufficient reason.

 

Please let me know more about the case.

[angel1977]

Thanks for the advice, i now have no idea of what to do but i will continue reading, in the mean time Capital one have sent me another letter telling me that i have incured default sums of £24 for over limit fee and a late payment fee on an account that they have closed. I have to laugh or i would be going down to capital one Nottingham ( the building is about 20 mins away from me) and trying to force feed someone the crap they keep sending me.

[BankFodder]

By the way, you need to check with the court from time to time that the case is still live.

We've had a few instances where companies have settled or aettled in part and informed the court and the court has then closed the case without checking with the claimant. Very naughty

[angel1977]

I forgot to add that yes when i took them to court i applied charges, interest and 8% court interest

[angel1977]

Notice of acknowledgement of service from cap1 via court dated 03/09/2009

 

My first move ?

 

Write to cap 1 adapting to template from the amending bank charges section stating :

 

I am writing to you because i am proposing to amend my statement of case in my credit card claim against you. I am hoping you will agree to the amendment so that i will not have to trouble the court with an application to amend.

 

I enclose a copy of the amended statement of case for you information. You will see that i am adding a request for the removal of any prejudicial information which you have passed to third parties, my request is made under the Data Proctection Act 1998, section 14 which gives the power to the courts to order the removal of inaccurate personal data.

 

I have sent a copy of this to the court and i have indicated to them i am seeking your consent.

 

I hope to have your response within the next seven days failing that i will have to complete an N244 application notice and ask permission of the court. I hope you will agree that it is highly likely that the court will allow this, as you defaulted this account two days after the balance of my account was cleared. this will be the first time that i have made an amendment in these proceedings.

 

Yours Angel1977

 

Then reprint my poc and add

And the claimant claims

 

The removal of any prejudicial information which the defendant bank may have passto third parties in relation to the Account and in particular the removal of any default notice registered with any credit reference agency

The claimants request is made under the Data Protection Act 1998, section 14

 

Write and underline the new paragraph in red

Is this right?

[BankFodder]

Yes, that's right.

[angel1977]

I have done the amendment letter and poc and know where to send them, now in my letter i tell them 'i have sent a copy to the courts' do i

a, just hand in a copy of the letter to the court, my letter has the claim no on it ( i dont know what to say to the clerk)

b, hand in both letter and poc with amended details on it

Or wait 7 days to see what happens

Thanks

[BankFodder]

Hng on there is a misunderstanding. You ask them for consent and then if they do consent, you send a copy of their consent to the court.

[angel1977]

Ah so all i have to do is send my amendment letter to cap1 and wait 7 days to see what happens

[angel1977]

Just a little update, i have sent my letter to cap1 and was delivered on the 21 of this month with no reply from them so i guess their time is up, i will download this n244 and see what i can do myself and come back with any questions.

That is my misson for today.

[BankFodder]

OK

[angel1977]

So far these are what i'm stuck on to varying degrees on this n244 form

Claimants Name ( well i know this but it is asking for a ref n.o. aswell )

 

Question 3 What order are you asking the court to make and why

 

I have put " To amend my statement of case because Capital one have defaulted and closed the account two days after the balance was cleared. The defendant no legal right to default an account when no monies are owed and have recored inaccurate personal data with credit reference agencies. This request is made under the Data Proctection Act 1998, section 14

 

Question 4 Have you attached a draft of the order you are applying for ???

 

Question 5 How do you want this application dealt with

I belive i have 2 choices the 1st at a court hearing or 2nd, at a phone hearing as cap1 will have legal reps but i dont know which one to choose

 

Thats my questions so far as i dont want to confuse myself even more.

[BankFodder]

I'm just trying to understand your current position.

 

You claimed charges from cap1. They caved in and credited you si that your account was cleared.

Your account is now clear and you owe no money.

However they have now defaulted you because of the debt which is now clear and which was subject to a dispute over charges

 

Is that correct?

 

Do they owe you any further money?

[angel1977]

Thats about it. this is my time line

All dates given are from the stright from the letters

 

26/08/09 I put in my N1 form claiming in total £466.60 mostly made up of charges £341.55 for them and £137.05 for me.

 

03/09/09 I recived a Notice of acknowledgement.

 

04/09/09 I recived a letter from cap1 saying have refunded £341.55 back into my account clearing the balance and would send a cheque for £137.05 which i have got but have not banked yet.

 

06/09/09 I recived a letter defaulting me and closing my account as according to them i owe £341.55

 

07/09/09 I recived a letter from Debitas informing me i owe Capital one £12.00 and banging on about how a default would seriously harm my ability to get credit blah blah.

 

09/09/09 I recive a letter from Capital one stating that i owe then £24.00 for:

Date Incurred Details Amounts

23/08/2009 Over Limit Fee £12.00

04/09/2009 Late payment Fee £12.00

[angel1977]

When i took them to court i included their charges, the 30% interest they were charging me and the 8% at court, but now they say i owe them £24.00

[BankFodder]

Right, Don't worry about the ref no as you don't have one but do make sure thatthe case number appears on the N244

 

Question three: that the court grants permission to the claimant to amend her claim as per attached.

 

The you attach the proposed amendment.

 

The entire amended POC is headed "amended particulars of claim" with those words in bold and written or highlighted or underlined in red.

 

Then you do your amended particulars of claim.

 

You will have to add something like:

 

On XXXdateXXX the defendants entered a default onto the claimant's credit file.

 

The said entry related to an alleged debt which has been the subject of these very legal proceedings.

 

It is a term of the banking code of practice that alleged debts in dispute shall not be recorded on credit files.

It is a term of the account contract with the defendant that alleged debts in dispute shall not be recorded on credit files.

Guidance from the Information Commissioner issued in 2007 (check this date) is that disputed debts should not be recorded on to credit files.

 

The defendant has acted in breach of the banking code

The defendant has acted in breach of the account contract.

The defendant has acted in breach of the Data Protection guidelines set out by the Information Commissioner.

 

The claimant seeks an order that the defendant removes the said credit files entries forthwith

 

Have you suffered any loss or inconvenience by this?

[angel1977]

Just my time spent looking in to all this, the postage and the fact i did want to keep the card as an emergency fund ( as i have no savings) and i wanted to rebuild my credit score with this card as one day i would like to buy my house.

In my amendment letter that i sent to cap1 legal dept i even included photocopies of the letters in question so they could see what had happened but to no avail

[angel1977]

I just wanted to make it clear that Capitail One defaulted me two days after they had cleared the balance via a refund, at first i just thought it was a mistake on their part but now am starting to think they ment to do this just to be spitefull.

[the_shadow]

Hi Angel,

 

Just to add to bankfodders advice, the banking code is now legally binding on them under Consumer Protection from Unfair Trading Regulations 2008 regulations.

 

If its a help I used this in my letter to crapone's legal section, you can extract the relevant bits to use in amended POCS if needed:-

 

This is in clear breach of the Banking code which Capital One is a signee of and hence enforceable under the CPUTR2008, specifically Regulation 5 which 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 that you are a signee of clearly states you must cease reporting the status of this account as behind on payments to all Credit Reference Agencies where the amount is disputed, I quote:

 

“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”

 

Obviously there was a dispute ongoing in court and hence the balance of the account could not be worked out correctly, as such the late or derogatory markers should not have been placed according to your own codes of practice. It should be noted a complaint to both the OFT and the BCSB has been made. I understand that I can use CPUTR2008 in a future case against Capital One if you don’t comply.

 

Best of luck.

 

S.

[angel1977]

Thanks for that Shadow,

This is what i'm stuck on

Question 4 Have you attached a draft of this order you are applying for ?

Question 5 How do you want the application to be dealt with: i have put at a hearing

Question 6 how long will the hearing take: i have left blank

Question 7 Details of fixed trial or period: left blank

Question 8 What level of judge: dont know

Question 10 What info will you be relying on: i put the statement of case then write attached in the box below.

If some could tell me what bits are right or wrong i would be gratefull because i'm not sure in anyway what i'm doing.

thanks

[the_shadow]

Thanks for that Shadow,

This is what i'm stuck on

Question 4 Have you attached a draft of this order you are applying for ?

Question 5 How do you want the application to be dealt with: i have put at a hearing

Question 6 how long will the hearing take: i have left blank

Question 7 Details of fixed trial or period: left blank

Question 8 What level of judge: dont know

Question 10 What info will you be relying on: i put the statement of case then write attached in the box below.

If some could tell me what bits are right or wrong i would be gratefull because i'm not sure in anyway what i'm doing.

thanks

 

Ok sure bankfodder will help more than I can but in the meantime...

 

Q4. no order is being requested.

Q5. No hearing, you just want the judge to accept the new defence, if there is an issue the judge will order a hearing to discuss.

Q6. " "

Q7. If you have any trial dates for this case coming up put them in.

Q8. District Judge

Q10. The amended POC and add evidence of letters sent/received in supposed settlement and default.... also screenshot/copies of credit file showing default and the date of said default.

 

S.

[angel1977]

Done! and handed in the the county court today, thanks for helping me.

I am fighting littlewoods as well and they say i'm being unreasonable and may ask the court for me to pay their fees if i carry on with my case!! Sometimes it feels like just when i got one critter sorted for the time being another one comes along!!

[angel1977]

On Sat the postie gave me this from the courts

 

"Your application was referred to the District Judge for directions, who had made the following comments" "Send the claimant a copy of the Defendant's letter dated 4/09/2009. The claimant is to reply to the court in seven days as to how this affects her application and whether or not she wishes to amend it."

 

The copy of Cap1 letter is simply a letter to the courts advising them that they have refunded my claim, but nothing about the fact they closed my account whilst it was in disputed which is what i (and all those who helped me) did so i'm not really sure what my next step is or how i tell them i want to continue my amended claim.