Tanzarelli v Cap One... £ + default **WON**

[jonni2bad]

You have to use an N1 for this type of claim - MCOL is for 'money-only' claims.

 

Do not separate the issues either as you have more likelihood of getting the default removed if it is part of the same claim for a refund because

 

(a) if they wish to settle out of court they have to meet all of your demands

 

(b) if they want to contest the default then they will also have to contest the charges

 

Because of this, you would be advised NOT to accept anything in relation to a refund if the default is not included.

 

I am presuming that, at the date the default was issued, the level of charges were at least close to the default value?

 

PoC should be something like this....................

 

******************************************************

 

1. The Claimant [has] [had] an account 1 ("the Account") with the Defendant which was opened on or around 2 [and closed on or around 2]

 

2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

5. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ 3 and any interest charged thereon;

b) the removal of any prejudicial information which the Defendant bank may have passed to third parties in relation to the Account and in particular the removal of the Default Notice registered with any credit reference agency which was notified to the Claimant on or around [date], since this was caused solely by the level of disproportionate penalty charges. The Claimant’s request is made under the Data Protection Act 1998, section 14, which gives the power to the Court to order the removal of inaccurate personal data.

c) Court costs;

d) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

……………………………………………………………………………………………….……………………………….……

 

NOTES ON ABOVE - Not to be included in the Particulars of claim

 

1. Enter account number

 

2.Enter date(s) of account opening and, if necessary, account closure.

 

3. Enter sum for charges total

 

Section 1 - “[has] [had] an account” - remove the unwanted option

 

Section 2 - “the Account [has been] [was] operating” - remove unwanted option

 

Section 5 - [date] Enter date that you were made aware of the default notice.

[jonni2bad]

happyh - I'm not sure what website you are referring to and to be honest I don't want to know.

 

If the default has been caused by unlawful penalty charges then the request for a removal should go with the claim for a refund. Any company that says it can get a default removed from your files would charge you a fee and not actually deliver the goods - they would be looking at ways in which to play with rules and regulations just in case something had been missed (like notification of the default).

 

If a default has been fairly placed on a credit file, then no company will be able to remove it for you.

[jonni2bad]

If you wish to reply in public, then perhaps you can also reply to the other points raised in my PRIVATE message to you - specifically to avoid having to become involved in some kind of public slanging match.

 

You have been advising users to claim for charges over £12.

 

You have been advising users to claim section 69 interest from the date of the OFT ruling rather than the date of the charge being imposed.

 

You have been advising members NEVER to accept partial payment offers.

 

With the above in mind, I think it was perfectly reasonable of me to assume that you were directing people to a site that they did not need - you could, of course, have simply replied to my PM and let me know the website was simply a person's story.

 

I have had to moderate numerous posts of your this evening and I make no apology for attempting to protect other users from misleading information that could potentially affect their claim.

 

If you wish to contact me about these issues, please do so, otherwise I would suggest several days in the FAQ section might just cure the problem.

 

Please don't use this thread to continue this conversation - it is simply hijacking an otherwise useful discussion.

[jonni2bad]

With reference to them trying to pay you off........

 

As you have suggested, they might believe that offering you the money part will be enough to drop the issue. They can pay money directly into your account, but they can't force cash into your hand. If they send a cheque, simply reply stating that you don't accept it until the default is removed.

 

If the case proceeds to court on that basis, you argue to the Judge that the case is not settled although they have made a partial offer which you have rejected.

 

Once in court, you argue that it was a deliberate ploy to avoid the issue of the unlawfulness. You need to show that you were not lawfully indebted to CapOne because of these charges, so accepting the money may have compromised your case etc etc

[jonni2bad]

Just reading at the mo.......... will respond shortly

[jonni2bad]

Your name

Street

Town

City

Postcode etc

 

 

Angela Wilson

Executive Office

Capital One Bank (Europe) plc

PO Box 5281

Nottingham

NG2 3HX

 

19th January 2007

 

Re: County Court Claim number ********

 

Dear Ms Wilson

 

I write in response to you ‘settlement offer’ letter dated 16th January 2007 and acknowledge receipt of this.

 

I reiterate that my claim is in 2 parts and they are intrinsically linked.

I thank you for your attempted settlement, but since you are unwilling to see the correlation between the unlawful charges imposed on my account and the subsequent default notice, I must inform you that I do not agree to the settlement offered and my claim will continue through the courts.

 

I am confident of my position and believe that I will be able to show a Judge that I was never lawfully indebted to you by the amount that is shown on the default register, or at all.

 

At the time of the default notice, you had imposed £802.00 in unlawful penalties. By offsetting this amount against the actual balance of the account, my financial position would have been a positive balance of £253.78 – thus the information passed to Credit Reference Agencies was inaccurate.

 

In your settlement offer letter, you refer to the position of the account and state “Your account defaulted with a balance that did include fees…”

With this in mind, it is clear that you understand the basis of my argument. Whilst you are attempting to persuade me that those charges were not unlawful, I would remind you that I am fully convinced that they are. It is a County Court Judge that you will need to convince otherwise.

 

Clearly I have no power to stop you from crediting my account, but I wish to make it perfectly clear to you that your actions should not be interpreted as an agreement on my part. If I receive any monies directly from your organisation in relation to this settlement offer then they will be returned immediately.

 

Should you wish to review your position with regard to removing the default from my credit files then I would be more than happy to enter into further discussion with you in the hope that you might avoid wasting the court’s valuable time.

 

I trust that this clarifies my position.

 

 

Yours faithfully

 

 

[signature]

 

 

[Print name]

[jonni2bad]

Please review figures shown.... I think they are correct based on the level of charges v the amount that their settlement letter states you owed to avoid the default notice.

 

Your PM stated the default value as only £91, so I'm not sure how these fugues differ so much.

 

Maybe it's just late!

[jonni2bad]

Your name

Street

Town

City

Postcode etc

Angela Wilson

Executive Office

Capital One Bank (Europe) plc

PO Box 5281

Nottingham

NG2 3HX

19th January 2007

Re: County Court Claim number ********

Dear Ms Wilson

I write in response to you ‘settlement offer’ letter dated 16th January 2007 and acknowledge receipt of this.

I reiterate that my claim is in 2 parts and they are intrinsically linked.

I thank you for your attempted settlement, but since you are unwilling to see the correlation between the unlawful charges imposed on my account and the subsequent default notice, I must inform you that I do not agree to the settlement offered and my claim will continue through the courts.

I am confident of my position and believe that I will be able to show a Judge that I was never lawfully indebted to you by the amount that is shown on the default register, or at all.

At the time of the default notice, you had imposed £802.00 in unlawful penalties. By offsetting this amount against the actual balance of the account, my financial position would have been a only £98.00 – thus the information passed to Credit Reference Agencies was inaccurate.

In your settlement offer letter, you refer to the position of the account and state “Your account defaulted with a balance that did include fees…” With this in mind, it is clear that you understand the basis of my argument. Whilst you are attempting to persuade me that those charges were not unlawful, I would remind you that I am fully convinced that they are. It is a County Court Judge that you will need to convince otherwise.

Clearly I have no power to stop you from crediting my account, but I wish to make it perfectly clear to you that your actions should not be interpreted as an agreement on my part. If I receive any monies directly from your organisation in relation to this settlement offer then they will be returned immediately.

Should you wish to review your position with regard to removing the default from my credit files then I would be more than happy to enter into further discussion with you in the hope that you might avoid wasting the court’s valuable time.

I should also clarify that you have failed to include the daily rate of interest accruing since the date of claim which is £0.16p per day.

I trust that this clarifies my position.

Yours faithfully

[signature]

[Print name]

[jonni2bad]

I don't think you need to let the court know just yet - there should be an opportunity to let the Judge know the score at a later point.

 

I have made a small amend in red above, I think this should be deleted. The remainder seems fine to me...

[jonni2bad]

... are Capital One unusual in their stubborn resistance to removing the default?

 

No, all organisation will likely fight this kind of claim. If you are asking for a default removal as part of the claim for charges refund, you are quite likely to have a day in court - unlike 'simple' bank charge only claims.

 

There is far more at stake for banks if a ruling is made against them on this issue, not least the potential for damages. You have to be aware of the amount of work required in studying the issues surrounding these claims and putting together your evidence etc.

 

You might wish to see an unhappy ending to one of these claims, in the hope that you can learn from it... See the link to my Halifax claim in my signature.

[jonni2bad]

Just back online tonight so I missed your request for me to look... Looks OK, although I would have simply put "I refer to my letter of XXXX" and would have ripped the cheque in two...

 

Also, don't bother with recorded delivery, it will likely not be signed for and will leave you thinking it might not have arrived. Just get a free certificate of posting from any post office - that's all the court needs.

[jonni2bad]

Just a quick recap from above, the cheque issue is to ensure they don't return it to you, although if they take it as being aggressive then all the better in my book.

 

I'm not sure if there is anything for use in the scenario you've just described - the DPA should suffice for the removal of incorrect information and that would be gained from showing a Judge that the charges were UNLAWFUL - not illegal.

[jonni2bad]

Looks good...

[jonni2bad]

Excellent news Tanz - CONGRATULATIONS!!

 

In the middle of all of this, don't forget to complete the SURVEY

 

I have also moved your Litigation details to CONCLUDED!