Is this Capital One CCA enforceable?

[Bigdebtor]

subbing, having the same with a cap1 debt held by robbingscum way, at present they owe me more than I owe them - stalemate:D

 

PGH - not stalemate - sue the b*ggers! They'll back down.

 

Shadow - Thanks for that.

 

I am going to redo my first para and sock it to them regarding this. The only thing is I calculate my charges and interst back to April 2000 to be over £5k - so the Small Claims Court is not open to me to get the whole lot back.

 

If I were to go with the current draft - and get the post 2004 stuff back without a fight then I take it I could then use your new info to go back to claim the stuff from April 2000 onwards until Jan 2004?

 

A dilemma - one big sock it to em now - or bite size chunks?

 

BD

[PGH7447]

to be honest these are small fry and I cant be arsed with them - I just get the enjoyment out of their empty idle threats

[Blondmusic]

Blondy

 

I attach bits out of my reply going off today that you might want to put in.

 

1. I am not sure about the 6 year bit - and have reserved the right to go back for earlier claims if I get that advice. I think I saw something on CAG that earlier charges are reclaimable - but I want to get the first bit paid ASAP.

 

2. I am pretty sure you can charge interest as the same rate as THEY charge it. The 8% would be charged in addition if you won in court. Compounded monthly at 1.9034% pe rmonth this soon exceeds the value of charges - especially for the oldest charges.

 

3. You CAN claim the full charge (not £18 or £20 charge less £12) unless they PROVE their ACTUAL costs - which they never do.

 

See bits of my letter below for you to use as you like.

 

Tip my scales if they help.

 

BD - bits of my letter below for you to cut and paste if you want:

 

 

I note your comments regarding the Limitation Act 1980 and I reserve the right to take further advice regarding the possibility of making a claim for those default sums charged prior to six years ago. In the meantime, whilst not accepting that I have no longer any right to claim a refund of such earlier sums and accrued contractual interest, for the benefit of reaching an earlier partial settlement and to assist me in times of financial hardship, I have calculated the amount of charges together with contractual interest accruing since 1 January 2004 and now request that you return to me all charges imposed on this account since that date, totalling £XXX together with contractual interest of £XXXX making the total current claim of £XXXX (based purely on charges accruing from 1 January). Interest has been calculated at the contractual rates as shown on your statements and compounded monthly as per your standard practice. This figure assumes that payment in full is made to me on or before X February 2010 (next statement date) . Interest will continue to accrue on a daily basis until the required payment in full settlement has been received from you.

 

 

As previously stated I believe I am entitled to have such default sums refunded in their entirety as I do not accept the charges imposed reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate. You refer to the Office of Fair Trading’s report of April 2006 in which I understand the OFT said, in plain language, that it would not launch a specific investigation on any card companies with charges lower than £12. It did not concur with your assertion that a charge of £12 was fair and lawful as that would be for a court to decide.

 

The report continues along the lines that a contract term is likely to be unfair if it requires consumers to pay more as a result of a default than the court would order them to pay if they were sued for breach of contract. This means that a default charge should not exceed a reasonable pre-estimate of the administrative costs that the consumer ought to have realised would be likely to be incurred by his or her card issuer in dealing with defaults. What costs were in the reasonable contemplation of the consumer would be a question for the court to decide. In general terms a default charge may include postage and stationery costs, and also a proportionate share of the costs of employing staff and of maintaining premises and IT systems in order to deal with defaults of the same kind. The precise level of any particular fair default fee, however, would depend on the business circumstances of the particular credit card issuer.

 

I would be prepared to consider a representation from you to reduce the amount claimed by the true costs to your business of the above elements accompanied with evidence to support such representations. In the absence of such evidence being provided I repeat my claim for a full refund of all the late payment fees, over limit fees and any other fees which you have described as “default” fees and have applied to my account since January 2004, together with contractual interest – as detailed in the attached spreadsheet.

 

 

Good luck - keep us all posted on progress via this thread and I'll do likewise.

 

BD

 

To be honest we are not really bothered about the charges more than 6 years after we made the claim. My mate should still get a fair amount of money out of it which would really help him out at the moment.

[Bigdebtor]

What you're forgetting is that the INTEREST from mid 2000 now amounts to over 8 TIMES more than the ACTUAL CHARGES (at 1.9% or more compounded monthly. £100 of cumulative charges by July 2000 and still not paid off the balance would have racked up over £850 of compound interest at Capital One's rates by now! If your friend can be "really helped" with more recent charges, he could be "really really significantly helped" with claiming the older charges. Why let them away with keeping your friend's money - no matter whether more recently or longer ago. The more you claim (justifiably) the more they will offer as a F&F settlement as they DON'T want to go to Court over charges.

 

Up to you and your friend - but would Capital One let YOU away with just a small fraction of what you owed without a fight?

 

I have now changed my letter to refute their claims about the Limitation Act (thanks Shadow!). I am happy to post this up for you to cut and pase. 10 minutes work for a hundreds of pounds more refunded? I wish I could have that hourly rate more often!

 

BD

[Blondmusic]

Thank you so much. My friend could do with the money since his hours have been reduced at work and his wife left him paying all the bills.

[Bigdebtor]

Blondy ( BTW are you male or female?) - body of my letter attached. I would appreciate other CAGGERs reviewing thsi and any constructiove comments gratefully received.

BD

Dear Cr*p One

Thank you for your letter dated XX January 2010 offering me a refund of £XXX plus interest of £X.XX in respect of the excess over £12 for default sums charged to the above account and I respectfully decline this offer. I note your comments regarding the Limitation Act 1980 and I would draw your attention to section 32 of the Act as outlined below:

 

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from late 2000 when you first begun to impose such unfair default charges.

 

As previously stated I believe I am entitled to have such default sums refunded in their entirety as I do not accept the charges imposed reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate. You refer to the Office of Fair Trading’s report of April 2006 in which I understand the OFT said, in plain language, that it would not launch a specific investigation on any card companies with charges lower than £12. It did not concur with your assertion that a charge of £12 was fair and lawful as that would be for a court to decide. I include these quotes from OFT “We are not suggesting that default fees should be set at £12, and a court will certainly not consider that a default fee is fair just because it is below the threshold”. “We consider that a contract term is likely to be unfair if it requires consumers to pay more as a result of a default than the court would order them to pay if they were sued for breach of contract. This means that a default charge should not exceed a reasonable pre-estimate of the administrative costs that the consumer ought to have realised would be likely to be incurred by his or her card issuer in dealing with defaults”.

 

The Law is very clear; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC 79.

 

In order for you to charge me £12.00 (or any other smaller sum) you must demonstrate to me that it cost Capital One £12.00 (or the smaller sum proposed) by you receiving my payment late or my going over my credit limit. To this end I would be prepared to consider a representation from you to reduce the amount claimed by me by a deduction reflecting the true costs to your business of the above elements accompanied with evidence to support such representations. In the absence of such evidence being provided I repeat my claim for a full refund of all the late payment fees, over limit fees and any other fees which you have described as “default” fees and which you have applied to my account since September 2000 together with contractual interest at the contractual rates shown by you in your monthly statements - as is my legal entitlement – all detailed in the attached 2-page spreadsheet.

 

I had previously calculated the amount of charges together with contractual interest accruing from the imposition of the first default charge in September 2000 until X January 2010 and I have now recalculated these based on an anticipated payment date of X February 2010. I now request that you refund to me on or before that date all charges imposed on this account, totalling £XXX.00 together with contractual interest of £XXXX.XX making the total currently claimed £XXXX.XX

 

Interest has been calculated at the contractual rates as shown on your statements and will be continue to be compounded monthly as per your standard practice. As stated earlier the figure claimed assumes that payment in full is made to me on or before X February 2010 and interest will continue to accrue on a daily basis until the required payment in full settlement has been received from you.

 

I note your comments about maintaining minimum payments in the meantime but this requirement does not apply since the amount due to be refunded by you is considerably in excess of the balance on the account as reported in your most recent statement. Based on this fact please advise Debitas that pending the required payment by you, this account should be regarded as being in dispute and instruct Debitas to cease contacting me by telephone, letter or by personal visit pending satisfactory resolution as outlined above.

Edited January 28, 2010 by Bigdebtor

[Blondmusic]

Thats fantastic. Thank you so much. I will make sure that letter gets sent recorded delivery as soon as possible.

 

I am a woman by the way and my picture is of my 1 year old German Shepherd called Sheena.

 

My friend (who i am doing this for) is a workmate of my boyfriends who needs as much help as he can get. Just to get this straight, i have to add up all the charges, then add the interest rate charged by Crap One (which is 29.9% according to the paperwork i have) then add 8% interest per year to that amount. Is that right or wrong? If its wrong then please tell me the right way to work it out.

Edited January 28, 2010 by Blondmusic
Additional Detail

[Bigdebtor]

Always happy to help damsels in distress! (I'm an old fashioned male chauvenist). Why not let Sheena do the negotiations for youat Crap 1 HQ?

 

Start with the first (oldest) charge - add the monthly interest and then add the monthly interest to this total - and so on each month, adding in each new charge a sthey were imposed right up to date.

 

If your statements show the actual % monthly interest applied on it then apply this to the cumulative balance. If not then you need to work out the monthly compound equivalent of 29.9% apr and add it to the growing balance each month. It is amazing how quickly it will add up! There is a CAG spreadsheet and also one on MSE to help you.

 

Good luck Blondie.

 

BD

[silverfox1961]

Hi,

I have seen that Crap1 don't normally settle until you file at court.

 

I do think that you can't add the 8% until you file as that is statutory interest.

 

You can calculate your charges using their rate and compound it (loadsamoney )

[Blondmusic]

Thanks for that. I will make a start on it this weekend or Monday at the latest. If anyone has got a link to the spreadsheet i would be realy grateful. I know how to use them after doing a course at college so anything you want to know about Office Word, Powerpoint, Excel or Access then i am the woman to ask!! I also know how to screen print anything that displays on your monitor and how to print it out.

[silverfox1961]

Here's some. Whether they are any use, I don't know.

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/118-interest-calculation-spreadsheets

 

Me and spreadsheets. ARRGH. I passed Clait1 but for the life of me I can't remember a thing anymore:confused:

[Bigdebtor]

Hi,

I have seen that Crap1 don't normally settle until you file at court.

 

I do think that you can't add the 8% until you file as that is statutory interest.

 

You can calculate your charges using their rate and compound it (loadsamoney )

 

I am quite happy to go all the way with them. I have added the interest at the same rate THEY charge on my statements 1.9xxx% compounded monthly .

 

If I need to go to court then they'll get charged another 8% statutory interest on top. Happy to take it from them.

 

Above letter going off today - will keep you posted on this thread.

 

BD

[Bigdebtor]

I have just had another wicked thought. Over the last few years I have from time to time managed to pay off my Cr*p One card in full - as the limit was under £1k and it was the highest interest rate card I had.

 

However I did this at the expense of my overdraft building up - and going over its (high) limit quite often - resulting in DD's (incl Cr*p One's) getting bounced and incurring charges (which I thought I would get back eventually with interest too - but thanks to OFT this now seems less likely and a lot harder to get back).

 

My thought is: Given I had actually gone over my o/d limit because I had paid Cr*p One money they demanded but were not entitled to get (as their default charges exceeded the amount "owed" and actually paid out to them) then surely they should compensate me for the resultant unfair Bank charges too?

 

After all I would not have incurred them if I hadn't paid Cr*p One -and I would not have paid them nearly as much over the years if the balance hadn't included all these default charges and the resultant compund interest.

 

Anyone know if this will fly?

Edited February 1, 2010 by Bigdebtor
typos

[citizenB]

It is an interesting thought, BD

[Bigdebtor]

Is that a pun? - Compound interesting even!

 

BD

[citizenB]

Is that a pun? - Compound interesting even!

 

BD

 

not intentionally.. but you take em when you can

[Bigdebtor]

Especially compunded interest! (Simple is just too boring!).

[questioner]

I am also chasing a similar capone story as this........

 

[Dotty50]

Hi I am planning to do this too, have just written back to them requesting the rates of interest charged over the period of the card (since 2001) as it was not on any paperwork they sent to the SAR!

 

No doubt I will be back for some assistance but it may be a while, Crap1 don't rush do they?

[MARTIN3030]

I have just had another wicked thought. Over the last few years I have from time to time managed to pay off my Cr*p One card in full - as the limit was under £1k and it was the highest interest rate card I had.

 

However I did this at the expense of my overdraft building up - and going over its (high) limit quite often - resulting in DD's (incl Cr*p One's) getting bounced and incurring charges (which I thought I would get back eventually with interest too - but thanks to OFT this now seems less likely and a lot harder to get back).

 

My thought is: Given I had actually gone over my o/d limit because I had paid Cr*p One money they demanded but were not entitled to get (as their default charges exceeded the amount "owed" and actually paid out to them) then surely they should compensate me for the resultant unfair Bank charges too?

 

After all I would not have incurred them if I hadn't paid Cr*p One -and I would not have paid them nearly as much over the years if the balance hadn't included all these default charges and the resultant compund interest.

 

Anyone know if this will fly?

 

 

You can also argue on restitution.

That is to say that they will have profited from your money.

[MARTIN3030]

Hi I am planning to do this too, have just written back to them requesting the rates of interest charged over the period of the card (since 2001) as it was not on any paperwork they sent to the SAR!

 

No doubt I will be back for some assistance but it may be a while, Crap1 don't rush do they?

 

 

I am sure that there will be some on this forum who can give you the rates that applied during the periods of your card.

[Dotty50]

Thanks Martin,

 

I did think of that but that is of course assuming that we all paid the same rates of interest and the increases were at the same time too.

[MARTIN3030]

So 2001 until when ?

[Dotty50]

Was about to say until now, but have got some statements which I can refer back to, only just thought that! :o

[Bigdebtor]

Cr*p one used to show the monthly interest % on each statement - then changed to annual % - so more difficult to work outth emonthly % (since compounded monthly). I think if you take the balance shown on each statement and the estimated £ amount of interest to be charged next month - then pro rate that to the amount to be charged per £100 you'll get the monthly % interest you were charged.

 

Alternatively I could send you the Cr*p 1 interest % rates I have going back to 2000 - but as Martin said your rates might be different.

 

BD