Cap One - Its No Fun!

[Sare Heid]

scan0041.pdfHi,

 

i recently cca'd Cap1, and after getting printed T&C's with an extract of signed application form, sent them the 'In dispute' letter.

the DN notice they sent was a nonsense and I sent them a letter listing various points which rendered it ineffective, no response received yet. and just to confuse themselves they stated different termination dates in 4 seperate letters.

needless to say they pressed on regardless and finally sent me a letter confirming termination of the account.

now i've received the attached letter from DCA insisting on payment, i was about to send the 'bemused' letter but was wondering if this was still relevant in light of recent rulings or has it been updated?

has anyone eles heard of cougar financial services or had any dealings with them?

 

i'd appreciate any thoughts / comments / advice.

 

cheers

 

SH

[the_shadow]

Hi SH,

 

I see from the bottom of the letter that "cougar financial services" is actually part of Credit Solutions Ltd, a well known DCA.

 

Basically due to the recent rulings a s78 response can be a reconstructed document but it still must meet certain requirements. It might help if you post up what they sent back as your CCA.

 

The current account in dispute letter stored in the templates library states a lot of things that originally they couldnt do, due to the rulings it has now been recognised that they can.

 

However if you still feel you are in dispute with capital one then the OFT guidelines state that the dispute must be settled by the original creditor so I would send off the bemused letter and see what they come back with.

 

S.

[dx100uk]

urm...

 

looks like the old credit solutions phishing letter template .

 

pers

 

i'd ignore them

 

how old is this debt

when was your last financial in/out?

 

dx

[Sare Heid]

hi shadow,

 

i've attached copy of the cca response with alleged original signed agreement page with t&C's and blank copy of current agreement with t&c's, please feel free to comment on content.

 

sent letter to dca informing of dispute with cap1 and not to contact again until resolved, no response as yet, early days though.

 

cheers

 

SH

scan0044.pdf

scan0045.pdf

[Sare Heid]

hi dx,

 

account dates back to early 2003, hasn't been used for some time but i've been making token payments due to circumstances.

 

cap1 were the only bunch that wouldn't accept token payment to give a bit of breathing space and chose to default me cos i wouldn't bow to their demands for all sorts of personal docs... this seems to be common for them from what i've read so far.

 

cheers

 

SH

[Sare Heid]

Hi all, heres a quick update....

 

Have now received TN on back of dodgy DN, drafted letter accepting unlawful rescission of the agreement.

 

Cr*p1 have sent lots of letters going to great lengths to explain how they believe agreement still enforceable, quoting lots of legal cases, account not in dispute, etc.... and that I should continue to make payments.

 

They still haven't sent a properly executed agreement, or confirmed they haven't got one, as I've requested....then again, I dont really expect them to. I suppose its all academical now seeing as they have rescinded the agreement, that they haven't managed to supply. Is there any point in pursuing this or just let it lie?

 

Now, i believe that they will be entitled to claim the arrears that were properly due (excluding unlawful charges + interest on same) at date of termination, and have asked them to supply a detailed breakdown, as i dispute the amount of arrears that they claim is due.

 

Will keep you posted.

 

SH

[dx100uk]

just remember ref the case below

[ATTACH]23387[/ATTACH]

find and be sure of all the areas that the dn fails on

each on its own, can be nulled as such

but lots of them will provide a good basic for it being invalid

 

dx

[Sare Heid]

Hi dx100uk,

 

Re. your earlier post #3 i've now got the full set (i think), cougar, power2contact & a recent letter from crdit solutions offering doorstep collections and asserting that i dont have the right to refuse access to my property!

 

This is the first contact i've had from crdit solutions, their letter implies that they have been trying to contact me (which they haven't) & asks me to provide evidence of any dispute. It's also demanding payment of balance in full and requests that I contact them to make arrangements to pay.

 

I see from their letterhead they're at the same address as cougar however that makes at least 2 seperate dca's chasing the same disputed account which hasn't been sold or assigned by OC.

 

I'm inclined to respond to cs in suitable terms telling them where to go but as I dont want to end up corresponding with 3+ different companies, this will be my final response to them. Should I also write to Cr*p1 telling them to call off the DCA's until dispute resolved (which is unlikely since they've issued their final response) or register complaint with OFT/FOS/Trading Standards?

 

Would appreciate your thoughts.

 

Cheers

 

SH

[dx100uk]

no if you've done as in post 6

 

the bal is in their court!

 

dx

[Sare Heid]

hi dx,

 

after reading through 'Rankines', started to question whether I had got it right with the DN so havent sent letter yet referred to in my post #6.

 

Thought it best to get a second opinion so I've attached a copy of original DN, would appreciate some feedback regarding its content, layout etc. I'd previously written to Cr*p1 challenging DN on 10 points which basically focussed on;

(1) alleged breach of cluase which didn't exist at time of application form (which they supplied as signed agreement),

(2) failure to make min payments in accordance with cl that didn't exist

(3) dn doesn't specify action to remedy default ie amount to be paid

(4) sum of alleged breach isn't stated in statement of description of alleged breach

(5) sum payable if default not remedied isn't stated

(6) dn doesn't specify a date on which any further action will be taken

(7) intention to add reasonable costs stated - presumptious, misleading - possible breach of Consumer Credit (Enf, Def & Term) Regs 1983

(8) dn states account may be placed with or sold dca - vague, unclear & ambiguous

(9) cr*p1 makes assumptions / predictions what dca might do when they are not in a position to

(10) dn did not include statement showing how alleged default sum or any balance owing was calculated, which would no doubt include penalty charges

 

As you mentioned earlier, perhaps any one of these alone might be considered insignificant ('de-minmus'), however collectively may be significant enough to be ruled inneffective.

 

As these have been the worst of the OC's i've dealt with so far, point blank refusing offers, demanding personal docs, etc, i dont believe they should be allowed any room for maneouvre, so would appreciate any thoughts / feedback on validity of dn.

 

cheers

 

SH

scan0052.pdf

[dx100uk]

try this:

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for

serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default

Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which

states:

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor

or hirer of a regulated Agreement -

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

................

 

 

the letter says notice of default not 'default notice'

 

it does not give a specific date in the formwt DD/MM/YYYY when the issue must be resolved

 

etc

 

not got much time sorry.

 

HTH

 

dx

[Sare Heid]

Happy New Year to All,

 

A quick update, after writing to csf & csl (one & same really) got a letter back from CFS confirming they had closed their file and passed back to Cr#pone who didn't waste any time in passing on to next level down in the food chain (C#pquest).

 

One letter and unanswered telephone message received so far, I'll read up on this lot before I get back to them.

 

SH

[Sare Heid]

Sent 'bemused' letter to C#puest informing account in dispute with OC, got reply back stating they had referred back to Cr*p1........doubt they'll get much sense there then!

[Sare Heid]

CAP1-Penalty Chgs.pdfHi all,

 

Received response to SAR request, pretty much all there except communications log so will chase for that.

 

In the meantime, I've gone through the statements to check what charges have been put on the account, quite surprised at how it all adds up!

 

I'd be grateful if someone could have a look at the sheet attached and let me know if it looks quite right or if not before I send off to Cr*pone. I've used the annual % rate from the 'original' t&c's they sent me (pot #4). Statutory interest still to be added (8%).

 

Cheers

 

SH

[Still_surviving]

Hi there

 

I havent read all through your thread to see if you are claiming compound interest. If you are, your figures seem way too low if you are using 23.1% which is what i saw on those T&C

 

For instance - when you use the calculator here :

 

http://www.egalegal.com/compoundWindow.html

 

£20 on the 22.03.03 at 23.1% compound throws up £104.10 in interest.

 

The figures will be a little bit toppy, but not massively so, and will form a basis on which to negotiate. I am in the midst of a case against another c/card company and we have almost agreed a settlement figure. All my calculations were done using this tool. If you go in too low, they will only seek to negotiate you lower anyway.

 

If I have got the wrong end of the stick re your claim, please accept my apologies, and disregard my drivel

[Sare Heid]

Hi SS & thanks for getting back so quickly.

 

I wasn't sure whether I should use the APR or the annual interest rate compounded, and opted for the latter, was this wrong?

 

The rate I used was from the 'original' T&C's but as you say, the 'most recent' version quotes a higher APR rate of 23.1%.

 

I want to get this right otherwise it'll not be taken seriously and if I should use the higher then so be it.

 

Would appreciate your thoughts / input.

 

Cheers

 

SH

[Still_surviving]

Hi SH

 

Please dont take what I say as gospel, however what Im posting now is based on my own experience with another credit card company

 

When i prepared my claim, I used the current APR being charged to me, and used that in the compound interest calculator. This was spotted by the other sides solicitor, however i countered by stating 'that is the contractual rate your client sees fit to charge me, so that is my starting point"

 

They didnt fight hard on that.

 

It is pointless reducing your starting claim to the bare minimum, as the other side will definitely seek to negotiate you down - either the company themselves, or their solicitors if you issue proceedings. As long as you use the current contractual rate, you cant be dismissed out of hand.

 

Remember - you are stating that these are unlawful penalty charges and therefore you have been unlawfully deprived of your money. If you decide to proceed with compound interest as I did, make sure you undertstand the theory of restitutionary interest.

 

From my other half's experience of Cap One, they will definitely come back and state that anything over six years is statute barred. This is countered by quoting by s.32 limitations act 1980, however, you will be into the realms of issuing proceedings by then.

 

Ive learned a lot recently in my dealings with opposing solicitors. In my opinion, they all know the charges have to be repaid. but they will try and test you to see how well you know your own case. If they think you are bluffing, they will haggle much harder. Its their job after all.

 

Hope this helps

Edited February 16, 2011 by Still_surviving

[Still_surviving]

This is a useful little article - remember you are in a contractual relationship with your credit card company. They would certainly remind you of that if you stopped paying!

 

http://www.bytestart.co.uk/content/legal/35_2/charging-interest-in-standard-terms.shtml

Edited February 17, 2011 by Still_surviving

[dx100uk]

agreed

 

good posts ss

 

dx

[Sare Heid]

Hi guys,

 

Finally got some time to update this spreadsheet but need a bit of clarification if you wouldn't mind.

 

Using the compiund interest calculator which Still_surviving kindly directed me to, is the interest compounded monthly or annually?

 

Also, I was thrown off a bit because the spreadsheet which I used from the library churns out a different set of values from the compoiund interest calculator even when same dates / principal amounts are used, any ideas?

 

Grateful as always for your help & advice.

 

Cheers

 

SH

[Still_surviving]

Hi there

 

If you use the calculator I suggested, set it to 12 monthly compunding periods, and tick the box for 360 day calculations.

 

I can only say that I have just satisfactorily concluded a case based on calculations from that tool.....£396 charges and around £1150 interest.