Stuartino vs Capital One Default Removal

[stuartino]

I have read through loads of threads on here, and I believe I have a reasonable shout of succeeding in my quest.

I used to have a Capital One credit card, and number of loans and other credit cards. In 2004 my wife and I sold our house, paid off all our outstanding credit and moved to Italy to start La Dolce Vita. Things didn't go to plan, which was massive shame, but two years later in Jan 2006 we returned to the UK.

When we applied for a mortgage a year later I was horrified to find that Capital One had defaulted me in 2005 for £267. I immediately rang and paid the balance, thinking that the default would be removed, of course it wasn't. I am sure that I got a settelement figure and paid them before we left the UK. I now think that their settlement figure was wrong by a small amount and the rest of the default amount is in charges. I will know when I get a statement I suppose. This default has hung over our heads since then, we bought our house at the top of the market on a 95% mortgage based only on my wife's decent salary, and we have been unable to change to a more favourable rate due to negative equity.

My understanding is that as they did not serve me with a default, and could not have done, as I was not here, they should therefore remove it.

I have used the first letter template from here, and by piecing the snippets from other posts together. I have read that Lloyds have denied receiving the "Registered Delivery" letter, they have claimed the postal order wasn't in the letter, so I have taken some precautions. I left the postal order pay to blank, I wrote the serial number on the bottom of the postal order, in the letter, I photo copied the postal order, attached that to the letter too, I wrote my account number on the back of the postal order.

I have a separate case against Lloyds MoreThan, I will let you know how it all goes.

[stuartino]

I have been following the current cases on this Capital forum. I have now confused myself. I am trying to get a default removed, so I was just going to go through all the letters and steps I found in the default removal thread. However, I have now read 2 things that I am uncertain of.

1. Should I be issuing a SAR or just wait until the template stage says to do so. Or would doing this now save time later?

2. I was only trying to get the default removed, I wasn't worried about the credit card charges. Should that be a major part of my case?

My position is I owed the money, I paid the money, but I don't deserve a satisfied default for £250 for six years paying it late. Am I being naive. I have a seperate thread going for a lloyds credit card, do the answers to these questions apply there too?

I know Capital one signed for my letter 1 on Monday, so I just sit back and wait for them to respond.

thanks

Stu

[craigers]

You should've made the postal order payable by the post office to Capital One. You never know what scrote there will pocket it for themselves! You can write to the Post Office to check if a postal order has been cashed- thats proof.

 

You don't need to receive the default notice. All the creditor has to do is show records (a computer dump saying the letter was sent) that they sent one, and it doesn't have to be tracked/signed for. You want to ask for a copy of the default notice to see if there is anything which would invalidate it.

 

As for the SAR you need to see what unlawful charges were made on the account, as this is big leverage for you. If unlawful charges make a large proportion of the default amount, then you have a good case to get the default removed. If you're not worried about getting the money back, then you can use it to your advantage- you have unlawful charges but you will drop any refund claim on the condition the default is removed.

[stuartino]

I have had a reply from CapOne refusing to send me the documents that I requested.

 

Here is their reply:

"Thank you for your recent letter requesting copy documents for your account.

You requested copies of the executed credit agreement and a statement of your account under section 78 of the Consumer Credit Act 1974.

As you may be aware, you brought your balance to zero with a final

payment of £1**.** on the ** October 2006. You subsequently requested

the closure of your account, which we completed on the ** February

2008.

Where there is no sum which is, or will, or may become payable under the credit agreement, then the obligation to_provide documentation under

section 78 of the Consumer Credit Act 1974 does not apply. Therefore, on the basis of the above, we have no obligation to provide you with a copy of the documents that you have requested. I have requested to send you a £1.00 cheque which will follow within the next 14 days.

I trust this will help you with your enquiries. If you need any further information, please contact me again.

Call me on expensive phone libes at Kylie Buchanan"

Is the above correct, should I now proceed to send SARN. I also noted that they dated their letter 19th Feb but I rec'd it on 26th Feb

 

I am also a liitle concerned that they "completed closing" the account in Feb 2008 does that mean the credit agencies have this info from that date rather than the day the default was settled in Oct 2006?

[silverfox1961]

Hi,

 

I would still SAR them just to be sure where this debt has come from although they have stated that the account was closed. As far as I'm aware, you can't close an account while there is a debt outstanding.

 

I would also write to the CRA and dispute the default and see what they can do.

 

fox

[craigers]

As the account is closed then yes, they are correct in saying that they don't need to provide under s78.

 

As fox says, SAR them. Ask for a copy of the default notice AND, very importantly, ask what date it was sent and by what means, ie Royal Mail first class. Make sure to ask for a list of all charges, a copy of the application form, and a copy of the alleged signed credit agreement.

[stuartino]

Hi, there was no debt outstanding as I paid the default amount. I only paid it out of naivity. I was trying to get a mortgage, and they let me believe that by paying it off, it would not be in default. So I paid it without questioning how the amount (£150ish) got to their figure. I really needed it sorted to quickly to get the mortgage. Obvioulsy I didn't get it! we lost the house we wanted. And had to revise our max spend. Any comment on how long it will stay on my account, from default or close of account? I honestly believe, I settled a final agreed figure with them, then due to some small amount (a few pounds) of interest, that escalated to £150.

[craigers]

if it defaulted in 2005 then it will drop off next year. i'd still sar them and if it throws up anything dodgy i'd threaten to sue for damages unless they remove the default.

[stuartino]

Thanks for your advice, I have sent the template SARN and £10 postal order lets see what that brings.

[stuartino]

Is it a trick?

Recently CapOne refused to send me the S78 info that I had requested, they sent me a £1 cheque to reimburse me for the postal order. I put the cheque in my bank account. I then sent them a SARN along with a postal order for £10. However yesterday they sent me another cheque for £1 again? I now don’t know what to do, cash it and think no more about it. Take the moral high ground, return their cheque and write and say that I would never dishonestly take money from them. Or is it a trick to get me to phone? So that I make sure that they are still processing my SARN? Or if it all goes to court, do they say that I have acted dishonestly buy not returning their cheque? Or are they just really crap? Can I expect cheque every week?

[silverfox1961]

Probably a cock up by Cap1. I wouldn't send it back or cash it. Why waste a stamp. Put it in a safe place and if they ask for it back, send it to them.