Floricita vs Cap 1

[floricita]

Hi there.

 

I have sent 2 LBA letters to capital one asking for full refund of charges and interest.

 

I have recieved the same response twice- that since the FOS investigation-they have lowered their charges to £12 and therefore they are ok. They will refund any monies over the £12 limit.

 

It is my understanding that this is not correct and that the £12 was just a guideline. And, according to legislation-the amount charged should reflect costs occured, which would most likely be a lot less than £12 although the court would have to decide that.

 

So hopefully I am right on that, and hopefully I am correct in my next course of action, which is to send in a court application to the small claims court in hope that they can sort it out.

 

I'm looking at the POC and I have to say that if possible I would like some help with it please.

 

I don't know exactly how best to word it?

 

Is there a guide or template here for a standard penalty charge claim that I can use?

 

Or if anyone has successfully used one I would be greatful for your help

 

Thanks

[silverfox1961]

Hi,

I think this is what you are looking for.

 

http://www.consumeractiongroup.co.uk/forum/content.php?561-Credit-Card-Charges.-POC-for-N1.

 

Don't back down once you have served the papers. Cap1 usually fold just before the court date but you must ensure that your figures are spot on

[floricita]

Thanks a lot.

 

sorry but I am a bit confused.

 

Is this what you posted the same as the N1 form?

 

All I have at current is this old one from another forum. DO I not need to include any of that and just that from the one above?

 

And if there an offical court form I need to write this on? Or do I just send it on an MS word doc with the cheque?

 

 

Thanks

 

"Fill in the Form as follows

 

Claimant: Your name. Your address

Defendant (s): You bank’s name. Head Office Address

Brief details of claim: The claimant wishes to claim back money taken from his/her account in relation to penalty charges

Value: Leave this blank

Defendant Name and address: Your bank’s name. Head Office Address

Amount Claimed: Total amount you are claiming.

Court Fee: Leave blank

Solicitors costs: Leave blank

Tick “NO” for Human rights question. [/size][/font]

 

 

Particulars of Claim

 

On or around the (date you opened account) the claimant opened an account (account number (insert number) sort code (insert number) with the Defendants, the claimant believes this was on the defendant’s standard term and conditions. (If you were never shown these say so) There was no negotiation on these terms it was either a take it or leave it policy. In fact the claimant had no option but to agree to the terms, as he would have met the same reply at any other Bank.

 

The Claimant has requested a copy of his/her contract and a copy of the defendants terms and conditions on two occasion but the defendant has not supplied either (Delete this paragraph if they have supplied them)

 

After reading about these types of charges in the Media, the Claimant decided to send the defendant a Data Protection Request letter dated (insert date) (attachment A) asking the defendant to supply him with a copy of his bank statements dating from (date) to (date).

 

After going through these statements the Claimant discovered that the Defendant had applied charges to his current account since the (date of first charge you are claiming) to (date of last charge) totalling £xxxx (insert amount) .A itemised breakdown of these charges are entered as attachments (B1 - 2 etc) (your spreadsheets)

 

On the (date you sent LBA) the Claimant sent the Defendants a letter (recorded delivery) informing them that he believed the charges were a penalty charge (attachment C1 to 2 etc) the Claimant then asked the defendant to confirm/prove that the said charges were a true reflection of the defendants administrate cost, or refund the said charges.

Regrettably the defendants refused to do either.

 

In addition the claimant also requested that the defendants highlight which clauses in the defendants Terms and Conditions they were relying to make these charges moreover to point out each term that the said charges had been applied against. Again the Defendants refused.

 

Because the defendant has continually refused to prove that they have any legal right or contractual right to apply the said charges furthermore they have refused to offer any evidence that the said charges are a true estimate of the administrative cost involved. The claimant has been left with no option but to issue a claim.

 

It’s the claimant’s contention that the defendants charges are a disproportionate penalty and therefore are unenforceable, the claimant relies on the following

 

Common law Principles (Penalty charges are irrecoverable at common law).

 

The precedent for this was:

 

Dunlop Pneumatic v New Garage [1915] AC 79.

 

 

Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges.

 

They are;

1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach.

 

2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum.

 

It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

 

 

Murray v. Leisure play [2005] EWCA Civ 963

 

 

“English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

 

 

 

CMC Group Plc And Others V Zhang [2006] EWCA Civ 408.

 

 

“'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

 

 

Furthermore or in the alternative penalty charges are also contrary to:

 

 

The Unfair Terms in Consumer Contracts Regulation 1999 No 2083

 

 

SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair

 

(e) Requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation

 

 

Further or in the alternative if the defendants state that there was no breach of contract and that the charges are for a service, then it is the Claimants belief that the defendants have attempted to restructure accounts in order to present events of default spuriously as additional services.

 

However The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just their mechanism. For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.

 

The claimant claims from the defendant a sum equivalent to the total amount unlawfully debited from the claimant’s account being (insert total charges).

 

The claimant further claims interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% per annum, being the sum of £xxxx(insert amount) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of (enter the daily rate of interest).

 

The claimant further claims the court fee of £xxxx (insert amount).”

 

 

The claimant respectfully requests that the court makes an order for standard disclosure, when issuing this claim, as the defendants have continually refused to supply any requested information.

 

 

(add this if you using this as an attachment)

 

Statement of Truth

 

*(I believe)(The Claimant believes) that the facts stated in these particulars of claim are true.

*I am duly authorised by the claimant to sign this statement

 

 

Full name: ________________________________________________

 

 

Name of claimant’s solicitor’s firm: _____________________________

 

 

Signed: __________________________________________________

*(Claimant)(Litigation friend)(Claimant’s solicitor)

 

 

Position or office held: _______________________________________

(If signing on behalf of firm or company)

 

 

*Delete as appropriate "

Edited November 22, 2010 by floricita
Additional info

[joncow75]

For a bit of a boost, I have just had a full refund of charges from Capital One, after I had filed with court. I received an intention to defend then my account was credited with the full amount and a cheque issued. Please be careful though as Capital One will send you a cheque for everything that is on your card that isn't a default. I had used the card as soon as i saw it was clear, and fould myself having to put some money back onto it as they drew against and up to the limit. Good luck, you will have your cheque in about a month

[floricita]

Thanks mate. May I ask if you used the POC as per above?

 

And did you use an official form to write it on?

 

Congratulations though. Glad you got your money back

[joncow75]

Hi, no problem. I filled mine on-line so you only have a small box to put everything in.

 

The Claimant has an account XXXXXXXX

with the Defendant.Since XXXXX the

Defendant debited charges and interest in

respect of purported breaches of contract

.Defendant is aware of all details as a list

of charges has already been supplied.

Claimant contends: The charges exceed the

Defendant's losses caused by the breaches.

The Term permitting the Defendant to levy

such charges is unenforceable under the

Unfair Terms in Consumer Contracts

Regulations 1999 Unfair Contract Terms Act

1977 and at Common Law. Claimant claims:

return of the amounts debited of £XXX

I will provide the defendant with separate

detailed particulars within 14 days after

service of the claim form.

 

I just put in the amounts debited the charges - not the interest as it would have taken me above £500 and the court cost was higher.

 

I hope that helps? Capital One issued defence after around 8 days, then I just kept checking my account. Next thing was account was at £0. However as I said earlier I used the card that day, then had a refund issued in cheque form that would have been within the limit had I not used the card. Prob an excuse for Cap One to hit me with a £12 charge!

[floricita]

Was that with moneyclaim?

 

Thanks a lot for all your help.

[floricita]

Right, so i'm guessing this is the correct form to send off?

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n1_0102.pdf

 

And am I right in thinking I have to send one off to court and one to the defendent?

 

For the brief description do I just literally write claiming back penalty charges?

 

In the POC part, there seemes to be only a smallish space, does it matter if I elongate this to include what the 1st poster suggested I could put in?

 

Thanks.

[silverfox1961]

If you are going to do this by hand (at your local court) take 3 copies and the courts will pass one on for you and send you one back-stamped

 

If you are doing it via MCOL copies will be posted by them

[joncow75]

Yes it was done through MCOL. All you could fit in was the text above. I even had to delete some of the spaces between words, it took nearly 20min to get right, lol. If you tick the boxes that you want the interest at 8% then this is added below the statement automatically

 

I can't ge that link to open, sorry

[silverfox1961]

And don't forget to put Cap1's head office address onto the form. Don't use any other office

[floricita]

Thanks guys for all your help.

 

I will get all my info tonight and have a go at completing the form tomorrow.

 

Is it not possible to just send off the forms? or is it only, by hand or MCOL?

 

I hope its ok to ask a couple more questions if I get stuck?

 

Cheers

[silverfox1961]

I hope its ok to ask a couple more questions if I get stuck?

 

Cheers

 

Whether you get any sensible answers is another thing

 

some more reading for you:

 

http://www.consumerwiki.co.uk/index.php/Step_By_Step_Guide

 

You can post them to the court but personally, I like to make sure they arrive

[floricita]

Thanks

 

And just out of interest. From experience, is there a "better" method between moneyclaim and handing them in by hand at the court? Or is it much the same?

 

Thank you again

[silverfox1961]

They are much the same but with MCOL you only have space for so many characters but as you POC's are brief, you could use that. Easier than going out too

[floricita]

Thanks mate.

 

the only problem is that a couple of new charges need to be added and the interest amended slightly compared to the one I sent Capone, does this matter ifI do it online?

[silverfox1961]

It would be worth doing another charges sheet then putting the new schedule on the POC's

 

Now, I assume you are charging them the same rate of interest they charged you?

[floricita]

~Hi again.

 

I have decided to hand in person as I found ouot its only a 2 min walk from work, so might as well.

 

No. I have applied the 8% statutory interest to all the charges. Should I be applying their interest rates? I'm not sure that is in the link of the POCs that you posted earlier? Now I'm a bit confused:???:

 

Also, am I right in thinking that I circle "attached" in the POC section and literally staple a seperate sheet(s) for the POC and schedules? as oppossed to squeezing it all in the little space they provide?

 

Probably a silly questions but I don't want to complete the form incorrect and for them to take the court fee and themm to refuse it.

 

Also just to confirm, its three identiical copies I do and pass to the court which they then administrate.?

 

Thanks for all the help.

[silverfox1961]

As you are now filing at court, you add contractual interest-compounded to the amount owing and then just put on the POC's 8% till judegement

[floricita]

Sorry mate I might be a bit slkow here.

 

On the charge sheet that I attach to the POC and N1 form, do I add contractual interest and not statutory interest? And use this figure for the total claim amount?

[silverfox1961]

You don't know when judgement will be handed down so I would put all the charges on your sheet with contractual interest added then a statement saying statutory interest at 8% but you obviously can't name a figure as the judgement isn't complete

[floricita]

Hi again.

 

Ok I have all the info I need and have decided to file in person.

 

I'm still having trouble with the N1 form however.

 

If someone could help with the following questions please.

 

1) It says POC attached/to follow.

the POCs I have from the link provided is very long and will not fit into the space provided. Can I simply tick or circle attached, leave the space blank and staple it to the form? If not, what should I do?

 

2) What do I put in the following parts

 

a)Value (seems to be a massive space here for this, and except for the total amount I'm cl

 

aiming for, not sure what else to put

 

b) brief details of claim

 

I really don't want to pay the court fee for nothing and get this sent back so any help would be appreciated. Hopefully get it in tomorrow.

 

Cheers

[floricita]

Ok, I have managed to do those parts, but have come across another obstacle

 

Previously Capital one refunded £96 onto my account. This was the difference between fees charged and £12 + interest on that difference.

 

I rejected this offer and they acknowledged my rejection in a letter, however, the refund was still put into my account.

 

Do I need to take these off my charge sheet?

 

Please help

 

Thanks

[floricita]

Or should I just make those ones £12 ones on the charge sheet ????????

[silverfox1961]

I would think you should include all the charges as they were charged then add on the partial refund