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

[TANZARELLI]

Hi all,

 

Just thought i'd start a thread for my battle against Capital One.

 

I phoned for statements as my account was had been passed over some time ago to Debitas Legal Services (part of Capital One I believe) the oustanding balance stands at £738.22 however I calculate that Capital One owe me £820 in charges, so in effect they owe me £81.78.

 

I firstly sent the following:

 

Capital One Bank (Europe) plc,

PO Box 5282,

Nottingham

NG23FB

1ST October 2006

 

Dear Sirs

Credit Card Account Ref: **** **** **** ****

Due to recent media coverage I now understand that the regime of fees which you have been applying to my account in relation to late fees and over limit charges, are unlawful at Common Law, Statute and recent Consumer Regulations.

I would draw your attention to the terms of the contract, which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner, which complies with UK law.

I believe that your charges are disproportionately high and therefore they are contrary to the Unfair Terms in Consumer Regulations 1999. In addition I believe that your charges are a Penalty. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79, along with Murray v Leisure play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that your charges do not reflect any actual and or real loss.

The Office of Fair Trading has concluded that penalty charges are unfair under the Consumer Contract Regulations of 1999, coupled with case law dating back to 1914.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I calculate that you have taken £820 in over limit and late payment penalty charges to my account as well as interest, which occurred due to these charges.

Additionally, I understand you have entered a default notice against my credit record and sold my account to Debitas debt collection agency. This default occurred merely in respect of unlawful charges levied by you, or was the result of impecuniosity’s caused directly from the taking by you of penalty charges which you had applied unlawfully to my account. In addition to full repayment of the £820 plus interest, which you applied to my account, I require that you remove the default entry from the register. Please note that a mere correction or amendment to the entry will not be acceptable.

For the avoidance of doubt, if this is not done within 14 days, I will commence my claim in the courts without further warning. This action will inevitably involve you in more costs.

Yours faithfully,

Tanz

[TANZARELLI]

Prior to the above when I had requested my statements the first set came on 23rd Sept 2006 with a covering letter from Debitas which said:

 

23 September 2006

 

Dear Mr Tansley

 

Account No. **** **** **** ****

 

Outstanding Balance: £738.22 (I beg to differ)

 

As requested I have enclosed copies of your account statements.

 

We need to speak to you urgently regarding your account. (I bet you do as you know whats coming)

Please contact us on 0845 234 5151. (why and speak to a robot in Outer Mongolia/India)

If you don't do this we may issue court proceedings against you, without further notice, for the outstanding balance, together with court fees, interest and costs. (funny that, I was thinking the same thing, so better have a letter stating I am requesting charges to be refunded)

We are open Monday to Friday 9am to 7pm, Saturday 9am to 1pm.

 

Calls may be monitored for training or security puposes. Calls will be charged at local rate.

 

Yours sincerely

 

Alex Mathews

Recoveries Manager.

 

Then on the 27th September had the same letter all but the first paragraph which read:

 

Thank you for your recent letter requesting statements from us from 8th March 2003 until 20th September 2006.

 

This letter included another set of statements exactly the same as the first.

[TANZARELLI]

On the 10th October I then recieved a letter from Capital One which said the following:

 

Dear Mr Tanz

 

Thank you for taking the time to write to us about the fees we've added to your account. I understand that you think these fees are unlawful and I'm sorry you feel this way. (are you really?)

 

To explain, we automatically added late payment fees if your payment was missed, arrived late or wasn't enough to cover the minimum payment. We also added overlimit fees if your balance went over your agreed credit limit, which was £400. (no s**t sherlock, funny thing is that my account/card would not let me go over the limit as it would decline this if used in a shop, and it would not have let me take out money from a cash machine either. So this means that the only way it could have gone over the limit is because you have added unlawful fees to my account)

When we opened your account in February 2003, we sent you a credit canrd agreement which stated these fees. By signing and returning this to us, you agreed to the terms and conditions for the account. (i didn't sign anything that said you could break the law and slate my character adversly though did I?)

As you're probably aware the Office of Fair Trading are not challenging the right of Banks to charge default fees, but merely the level of those fees. (Well set them at about 50p and we wouldn't be in this situation now would we!!!!) Although we feel £20 is a just fee, we have reduced our charges to £12 so we are in line with our competitors. (still not good enough i'm afraid, talk to the hand)

I've reviewed your account and as a matter of goodwill, i'd like to reduce the fees we've added to your account to £12. So I can do these refunds totalling £328, please sign and return the settlement form i've included. Once I get it back i'll add these refunds to your account. (no thanks i'll wait for the lot to be refunded and the default to be removed.)

I'll then contact the agency thats looking after your account and adevise them of the new balance. (well considering its still you that won't be hard, as theres only one diget difference in the postcode)

You also asked me to remove the default notice from your credit file. We have to record accurate information with credit referece agencies, and as the default was recorded correctly I can't remove this. (I beg to differ as its your fault its there anyway, so we'll have to wait and see about this one)

I hope I've explained things clearly and you'r happy with the steps I've taken. (No not in the slightest see you in court, well prob not as you'll bottle it prior to this like all the others) However, if you have any further questions please write back within four weeks. My address is in the leaflet I've included, which also explains our complaints procedure. If I don't hear from you , i'll consider that you're happy with my response and that your complaint is closed. (Oh you'll hear from me! Oh and by the way this is my timetable not yours)

Yours sincerely

 

Robert Udy

Executive Office Manager

 

Usual templated sh*t I beleive.

 

The next day I recieved another letter from Alex Mathews which was the same as the first two he'd previously sent. But i'd already sent him the following on the 5th Oct 2006 so I'm just ignoring him by now:

 

Debitas Legal Services

PO Box 6459,

Nottingham

NG23FG

 

NOTICE OF DISPUTE

Re Account No. **** **** **** ****

5th October 2006

 

Dear Alex Mathews,

 

Thank you for your letter dated 27th September 2006, in which you enclosed copies of my statements from Capital One from 8th March 2003 - 20th September 2006.

 

In your letter you made reference to a balance, which you say is outstanding for £738.22.

 

I am currently in dispute with Capital One Bank, as I believe they have unlawfully levied penalty charges to my account during the period mentioned above. The amount that I have requested the refund to me is £820.00. (Even though I'm sure you already know this) I have given them 14 days to refund this amount to my account and if they don't then I will be filing a claim through the County Courts.

 

In addition to this I have asked them to remove the default notice they have entered against my credit record.

 

I am enclosing a copy of the letter which I sent to Capital One for your information.

 

I am happy to discuss this with you further but would suggest that you contact them in relation to this matter, as it was they who sold the account to yourselves.

 

Yours faithfully,

 

Tanz

 

[TANZARELLI]

Following on from the above I sent the following:

 

Dear Mr Udy,

 

RE: Your Reference ***/***/**-*******

Account Number - **** **** **** ****

 

Thank you for your recent offer of £328 as a gesture of goodwill, I must inform you that I will not be accepting this offer.

 

As outlined in my earlier correspondence I explained that the charges you have applied to my account are contrary to the UTCCR, furthermore in the alternative, I believe that your charges are a Penalty.

 

Penalty charges are irrecoverable at common law. The prcedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963.

 

As I am being pursued by Debitas Legal Services for a balance of £738.22, which is because you sold my account to them, I offer you two options to resolve this matter.

 

1. You refund me in full £820.00 plus any interest and I will pay Debitas their balance of £738.22.
   
2. You settle the balance with Debitas and refund the remaining amount from the £820.00 plus any interest to me.

In addition to this I require the default notice to be removed from my credit record. As you know I only had a £400 credit limit on my account and did not have the facility to sepndover that limit. The only reason my account went over this amount is purely because of unlawful penalty chrges levied onto the account by Capital One Bank, Although in my original letter I informed you that I would start legal proceedings within 14 days, as a gesture of good will, I will give you an extra 14 days to resolve this. I fhtis is not done within 14 days, I will be forced to start legal proceedings to recover this money and to have the default notice removed from my credit file. This will inevitably involve you in more costs. You will recieve no further warnings.

 

Yours sincerely,

 

Tanz

[TANZARELLI]

I then recieved Capital One's final response letter dated 25th October, usual templated one.

 

I replied with the following letter:

 

1st November 2006

 

Dear Mr Udy

 

RE: Your Reference ***/**/**-*******

Account Number **** **** **** ****

 

Thank you for your letter dated 25th October 2006 in which you issued your final response. I am very disapointed, but not surprised with your response to my previous correspondences of 1st Oct and of the 15th Oct 2006.

 

Firstly I must point out that you seem to consider my previous letters as complaints. I must infom you that they were not complaints they are, and always have been requests, requests which you don't seem to be taking seriously.

 

Unfortunately you have left me with no option but to take this matter further. I must inform you that in the very near future I will be filing a claim with the County Courts to claim in full the amount of £820.00 in unlawful penalty charges, which you have levied to my account, along with interest claimed at the annual rate of 8% pursuant to section 69 of the County Court Act, and costs. In addition to this I will be requesting that the default notice which you have applied to my credit file be removed.

 

I do not expect a personal response to this letter as you have made it clear that you have issued your fianl response.

 

Yours sincerely

 

Tanz

 

However as I hadn't got access to the £120 fee needed to file and I was concentrating on my Barclays claim etc, so this got left until this week. When revisiting it I realised that I had not sent a Schedule of Claim for Charges, so on Monday 4th Dec, I sent the following LBA (I know I have been going around the block on this one for to long already but there was a few things which I wanted to add the my final LBA, as well as including a Schedule of Claim for Charges.

 

This is what I sent:

 

 

Robert Udy

The Executive Office

Capital One Bank

PO Box 5281

Nottingham

NG23HX

4th December 2006

Dear Mr Udy

RE: Your Reference ***/**/**-*******

 

Account Number - **** **** **** ****

 

 

LETTER BEFORE ACTION

Thank you for your letter dated **/**/****

 

I am very disappointed that you have failed to respond positively to my letter previous letters.

I now understand that the regime of fees which you have been applying to my account in relation to late fees and over limit charges, are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £820 in unlawful penalty charges.

I am enclosing a copy of the schedule of the charges which I am claiming.

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity’s caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

I require repayment in full of this money and removal of the default notice. If you do not comply fully within 7 days from the date of this letter, then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

In addition to this, if you fail to comply with this letter, I request without further notice a breakdown and proof of all costs involved, in regards to your actual or liquidated losses involved in any breach of contract to which these charges relate with yourselves, and that these charges reflect your true costs in relation to the said charges, and are proportionate to the charges levied on my account as defined in Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 (e). I also hereby request a detailed report of which clause in your terms and conditions each charge has been applied against.

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act. If you do not understand what this means then seek advice from your legal department.

 

 

Yours sincerely

Tanz

Section 7 of the DPA Reads:

RIGHTS OF DATA SUBJECTS AND OTHERSRight of access to personal data. 7. - (1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled-

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b) if that is the case, to be given by the data controller a description of-

(i) the personal data of which that individual is the data subject,

(ii) the purposes for which they are being or are to be processed, and

(iii) the recipients or classes of recipients to whom they are or may be disclosed,

© to have communicated to him in an intelligible form-

(i) the information constituting any personal data of which that individual is the data subject, and

(ii) any information available to the data controller as to the source of those data, and

(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

(2) A data controller is not obliged to supply any information under subsection (1) unless he has received-

(a) a request in writing, and

(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless-

(a) the other individual has consented to the disclosure of the information to the person making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to-

(a) any duty of confidentiality owed to the other individual,

(b) any steps taken by the data controller with a view to seeking the consent of the other individual,

© whether the other individual is capable of giving consent, and

(d) any express refusal of consent by the other individual.

(7) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.

(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.

(9) If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.

(10) In this section-

"prescribed" means prescribed by the Secretary of State by regulations;

"the prescribed maximum" means such amount as may be prescribed;

"the prescribed period" means forty days or such other period as may be prescribed;

"the relevant day", in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3).

(11) Different amounts or periods may be prescribed under this section in relation to different cases.

Section 13 of the DPA Reads:

Compensation for failure to comply with certain requirements.13. - (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

 

I also enclosed a copy of my Schedule of Claim for Charges and sent this last letter to my new found pen pal at Capital One.

 

See you in Court Hopefully.

 

Urgent Advise Needed!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

Question (1) How do I go about claiming under ss7 and 13 of the DPA, is this done when I file my claim using MCOL, or do I do this seperately?

 

Question (2) Is there a POC for this type of claim and and is it different to the one I used in my claim against Barclay?

 

Any comments about any of the above welcomed.

 

Thanks

 

Tanz

[TANZARELLI]

I then recieved Capital One's final response letter dated 25th October, usual templated one.

 

I replied with the following letter:

 

1st November 2006

 

Dear Mr Udy

 

RE: Your Reference ***/**/**-*******

Account Number **** **** **** ****

 

Thank you for your letter dated 25th October 2006 in which you issued your final response. I am very disapointed, but not surprised with your response to my previous correspondences of 1st Oct and of the 15th Oct 2006.

 

Firstly I must point out that you seem to consider my previous letters as complaints. I must infom you that they were not complaints they are, and always have been requests, requests which you don't seem to be taking seriously.

 

Unfortunately you have left me with no option but to take this matter further. I must inform you that in the very near future I will be filing a claim with the County Courts to claim in full the amount of £820.00 in unlawful penalty charges, which you have levied to my account, along with interest claimed at the annual rate of 8% pursuant to section 69 of the County Court Act, and costs. In addition to this I will be requesting that the default notice which you have applied to my credit file be removed.

 

I do not expect a personal response to this letter as you have made it clear that you have issued your fianl response.

 

Yours sincerely

 

Tanz

 

However as I hadn't got access to the £120 fee needed to file and I was concentrating on my Barclays claim etc, so this got left until this week. When revisiting it I realised that I had not sent a Schedule of Claim for Charges, so on Monday 4th Dec, I sent the following LBA (I know I have been going around the block on this one for to long already but there was a few things which I wanted to add the my final LBA, as well as including a Schedule of Claim for Charges.

 

This is what I sent:

 

 

 

Robert Udy

The Executive Office

Capital One Bank

PO Box 5281

Nottingham

NG23HX

 

4th December 2006

 

 

Dear Mr Udy

 

RE: Your Reference ***/**/**-*******

 

Account Number - **** **** **** ****

 

 

 

LETTER BEFORE ACTION

 

Thank you for your letter dated **/**/****

 

 

I am very disappointed that you have failed to respond positively to my letter previous letters.

 

I now understand that the regime of fees which you have been applying to my account in relation to late fees and over limit charges, are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £820 in unlawful penalty charges.

I am enclosing a copy of the schedule of the charges which I am claiming.

 

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity’s caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

I require repayment in full of this money and removal of the default notice. If you do not comply fully within 7 days from the date of this letter, then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

In addition to this, if you fail to comply with this letter, I request without further notice a breakdown and proof of all costs involved, in regards to your actual or liquidated losses involved in any breach of contract to which these charges relate with yourselves, and that these charges reflect your true costs in relation to the said charges, and are proportionate to the charges levied on my account as defined in Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 (e). I also hereby request a detailed report of which clause in your terms and conditions each charge has been applied against.

 

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act. If you do not understand what this means then seek advice from your legal department.

 

 

 

 

 

Yours sincerely

 

 

Tanz

 

Section 7 of the Data Protection Act Reads:

 

RIGHTS OF DATA SUBJECTS AND OTHERSRight of access to personal data.7. - (1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled-

• (a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

• (b) if that is the case, to be given by the data controller a description of-

• • (i) the personal data of which that individual is the data subject,

• • (ii) the purposes for which they are being or are to be processed, and

• • (iii) the recipients or classes of recipients to whom they are or may be disclosed,

• © to have communicated to him in an intelligible form-

• • (i) the information constituting any personal data of which that individual is the data subject, and

• • (ii) any information available to the data controller as to the source of those data, and

• (d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

(2) A data controller is not obliged to supply any information under subsection (1) unless he has received-

• (a) a request in writing, and

• (b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless-

• (a) the other individual has consented to the disclosure of the information to the person making the request, or

• (b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to-

• (a) any duty of confidentiality owed to the other individual,

• (b) any steps taken by the data controller with a view to seeking the consent of the other individual,

• © whether the other individual is capable of giving consent, and

• (d) any express refusal of consent by the other individual.

(7) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.

(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.

(9) If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.

(10) In this section-

• "prescribed" means prescribed by the Secretary of State by regulations;

• "the prescribed maximum" means such amount as may be prescribed;

• "the prescribed period" means forty days or such other period as may be prescribed;

• "the relevant day", in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3).

(11) Different amounts or periods may be prescribed under this section in relation to different cases.

 

Section 13 of the DPA Reads:

 

Compensation for failure to comply with certain requirements.13. - (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-

 

• (a) the individual also suffers damage by reason of the contravention, or

• (b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

 

 

I also enclosed a copy of my Schedule of Claim for Charges and sent this last letter to my new found pen pal at Capital One.

 

See you in Court Hopefully.

 

Urgent Advise Needed!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

Question (1) How do I go about claiming under ss7 and 13 of the DPA, is this done when I file my claim using MCOL, or do I do this seperately?

 

Question (2) Is there a POC for this type of claim and and is it different to the one I used in my claim against Barclays?

 

Any comments about any of the above welcomed.

 

Thanks

 

Tanz

[TANZARELLI]

Sorry for posting that twice

 

Please see above questions?

[TANZARELLI]

It sounds like you are having loads of fun with CAP One. The quicker you send your LBA and issue proceedings the quicker you will be paid out what is rightfully yours.

Have you added contractual interest or just 8%. I say this because the contractual interest adds up.

I issued MCOL this week so I expect to be paid in next 4/6 weeks.

Good Luck

DS

 

Hi dsilverstein,

 

Not filed yet if you see on my last post they have until Monday then will do this, I need some answers about getting default removed first as want to do this right, any thoughts?

 

Haven't added contractual interest as not to sure about how to do this any suggestions on how to work this out would be welcomed?

 

Tanz

[TANZARELLI]

I was jsut wondering if I should send the following:

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

of The Data Protection Act 1998.

 

Data Subject Notice

 

 

To: The Data Controller

Capital One Bank plc

PO Box 5282

Nottingham

NG23FB

7th December 2006

 

 

Data Subject: Tanzarelli

 

Address: My Address

 

Whereas I have been a customer of Capital One Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

 

 

Tanzarelli

 

 

[put your title, initials and surname]

 

Dated this 7th day of December, in the year Two Thousand and Six.

I have not yey checked my credit file records with the CRA's but am aware that/and Capital have confirmed that there is a default entry aginast my file. Would it be advisable to obtain these first prior to sending or should I send this then gather that info?

Any thoughts welcomed and responses to my questions above, many thanks.

Tanz

[TANZARELLI]

Bump

[TANZARELLI]

Capital One have until tomorrow before the deadline for the LBA is up, could anyone respond to the question in above post re wether I should send the following prior to obtaining info from CRA's about default? I know there is one as remember getting the letter from crap one.

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

 

of The Data Protection Act 1998.

 

 

Data Subject Notice

 

 

 

 

 

 

To: The Data Controller

Capital One Bank plc

PO Box 5282

Nottingham

NG23FB

 

7th December 2006

 

 

Data Subject: Tanzarelli

 

Address: My Address

 

Whereas I have been a customer of Capital One Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

 

 

 

Tanzarelli

 

 

[put your title, initials and surname]

 

Dated this 7th day of December, in the year Two Thousand and Six.

 

I have not yey checked my credit file records with the CRA's but am aware that/and Capital have confirmed that there is a default entry aginast my file. Would it be advisable to obtain these first prior to sending or should I send this then gather that info?

Also

Question (1) How do I go about claiming under ss7 and 13 of the Data Protection Act, is this done when I file my claim using MCOL, or do I do this seperately?

 

Question (2) Is there a POC for this type of claim and and is it different to the one I used in my claim against Barclays?

 

 

 

Any thoughts welcomed and responses to my questions above, many thanks.

 

Tanz

[TANZARELLI]

I was jsut wondering if I should send the following:

 

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

 

of The Data Protection Act 1998.

 

 

Data Subject Notice

 

 

 

 

 

To: The Data Controller

Capital One Bank plc

PO Box 5282

Nottingham

NG23FB

 

7th December 2006

 

 

Data Subject: Tanzarelli

 

Address: My Address

 

Whereas I have been a customer of Capital One Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

 

 

 

Tanzarelli

 

 

[put your title, initials and surname]

 

Dated this 7th day of December, in the year Two Thousand and Six.

 

I have not yey checked my credit file records with the CRA's but am aware that/and Capital have confirmed that there is a default entry aginast my file. Would it be advisable to obtain these first prior to sending or should I send this then gather that info?

 

 

Any thoughts welcomed and responses to my questions above, many thanks.

 

Tanz

 

 

 

 

 

 

As the deadline is up (as of today) on my LBA I need to get a claim going.

 

My questions are:

 

1) As I have a default on my file which i wish to have removed, should I send the above notice prior to completing my N1?

 

This is what I put in my LBA also see above post #6

 

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

I require repayment in full of this money and removal of the default notice. If you do not comply fully within 7 days from the date of this letter, then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

2) what do I need to add to the N1 POC, i'm stuggling for the wording as for my Barclays claim I used the one from the library and added my details, do I need to state that i'm making a claim for damages under ss 7 and 13 of the DPA?

 

I do want to claim for damages for them damaging my credit by applying the default to my file.

 

3) How could I quantify the damages I want to claim?

 

I may have rushed this a bit but hope you understand what i am trying to get at with my questions.

 

Can anyone enter into a dialogue with me on this, I have been quite paitent, but would like to know what my next step should be.

 

Please talk to me I am feeling a bit stuck on this. It is suggested that I should enter into a discussion prior to making the claim to have a default removed.

 

Is there anyone out there???????????????????????

 

bump

 

Tanz

[TANZARELLI]

Thanks Bill,

 

I see what your saying, it might be worth trying to claim the charges, then when they are refunded take action to get removal of default notice. However what I don't want is for a bad situation to become worse in the long run, if you see what I mean.

 

P.S Have a Banana.

 

Tanz

[TANZARELLI]

Tanz

 

You may find this thread helpful re default removal N1 POCs etc- from about page 4 onwards

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank/3962-jonni2bad-halifax-got-money-5.html

 

All the best

 

Sarah

 

Thanks sarahpp,

 

I have just read that bad boys thread from start to finish all 288 posts of it. what a gutter at the end.

 

Really useful though, i have posted J2B for info relating to his POC.

 

Thanks again.

 

Tanz

[TANZARELLI]

Hi Tanz Bill asked if we could have a look for you:)

 

You don't need to send a stat notice, you'll get the default removed via the claim for charges.

 

You have not applied contractual interest from the beginning of your claim, i.e prelim stage so unless you want to start again (or at least from LBA stage) including the amount claimed for contractual interest then just stick to the stat 8%.

 

You have asked for the default to be removed at every stage of the claim so no worries! You can include this on MCOl but it allows very little room for it in the POC. My advise is to do it via the N1 route here.....

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

that way you have lots of room for your poc to include the default.

 

here's a list of fees also...

 

County Court Fees

 

Anything else you want to know?

 

Good luck

Wxxx

 

Thanks wilowb,

 

I am going to stick with stat 8% on this one but will go for the kill on the BCard on due to their arrogance.

 

Thanks for this info much appreciated.

 

Tanz

[TANZARELLI]

Thanks Sarah & Willow.

 

I hope that was useful for you, Tanz.

 

Willow points out that you don't appear to have claimed contractual interest. I should be able to help you with that, at least !!

 

Let me know if you need any.

 

Bill.

 

Thanks again Bill,

 

just read the whole of jonny2bads thread what a gutter at the end, felt somewhat deflated by it, and sorry for J2B.

 

Tanz

[TANZARELLI]

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.

 

Thanks for that jonny2bad, jsut read all your thread Halifax, what a gutter. Lots of usful thing learnt there though, and I will definately not accept charges before default is removed.

 

Thanks again, your a legend.

 

Tanz

[TANZARELLI]

Here Here, ditto.

 

Tanz

[TANZARELLI]

Had another letter from Crap One today which was a little odd considering they have already issued their final response.

 

Not bothered about it though as still going to file claim when I get around to doing it (tomorrow).

 

Anyway it reads:

 

12 December 2006

 

Dear Mr T

 

Account No. **** **** **** ****

 

 

Thank you for writing to me again about the fees (Unlawful Penalty Charges) we've added to your account.

 

Its going to take us a little while to look into your situation and come back with a detailed response. (well its a bit late for that now as you are going to get served with a claim now) We'll do everything we can to get an answer to you within four weeks of this letter.

 

If for some reason our investigations take longer than four weeks, we'll contact you to tell you why this is. (How nice, but to late)

 

Thank you very much for being patient while we collect the information we need. (Well I can tell you the info you need is that the charges total £820, they need to just be refunded, and you will need to remove my default notice.)

 

Yours sincerely (are you really being sincere?)

Robert Udy

Executive Office Manager

 

Oh well if they think i hanging around for 4 weeks they've got another thing coming. Going to slap my claim in on monday when I have writen the POC on my N1.

 

Bish bosh bang.

 

Tanz

[TANZARELLI]

I will if you insist. No really the pleasure is all mine. lol

[TANZARELLI]

Like it? Like your new one.

 

Tanz

[TANZARELLI]

I like to keep an eye on proceedings.

 

Just a quick question Willowb,

 

When requesting credit files from the likes of equifax, experian, call credit etc what do they need in terms of info re previous adresses is it 6 years worth? Also how do we get this for £2 do we just write to them and state where we have lived etc or do we have to request it under something?

 

Thanks

 

Tanz

[TANZARELLI]

Thanks both,

 

Got it sorted now. Just was in a bit of a rush as wanted to get my POC done for Capital One and needed to know date of default etc.

 

Just got to add a few bit to POC then will take it into Worcester County Court to file with fee.

 

Another one bits the dust.

 

Interestingly though there is no default for Barclaycard showing on my record, which is prob cause I paid the balance off. This will be a lot simpler now because of this, which I'm happy about.

 

Keep you posted.

 

Tanz;)

[TANZARELLI]

Right, just to update N1 and POC done for Crap One didn't have time to take it into Court today so will have to do it tomorrow morning.

 

Jobs a good un!!

[TANZARELLI]

Thanks crusher eye might just do that.

 

Tanz