New Claim - Another Capital One

[MickKane]

Good luck Doo.

[bill-k]

Doo, as i recall you had them play their trick of sending you a "phantom" agreement in response to your CCA request.

 

I can tell you that this is another of their tricks, which they have been using. They know, because they see what goes on here, hoe confusing contractual interest is for many people. They know that they can confuse you and get you to doubt your figures. They are not confused about it, believe me, they are confusing you. Don't let them

 

I honestly can't remember if I've checked your figures or not, but I will be glad to. PM me if you'd like me to.

 

Bill.

[doo]

Thanks Mick - will keep thread updated.

[redsonja]

OK guys, I guess you are all at work/lunch, have a look at this letter will you Tanz/Sonja and give me some comments.

 

 

I am in receipt of your letter dated 17 April 2007.

 

I am afraid I will not be accepting your offer, my claim still stands for the full amount as per the court claim. I am enclosing with this letter an updated spreadsheet as per todays date to update you regarding daily interest that is accruing and will continue to accrue until this matter is settled.

 

As my POC (put full description in) states I am claiming (compound- delete) contractual interest (compounded daily) at 26.94% APR which is the rate that was confirmed by you to have been applied to my account. It also further states that ‘in the alternative’ should the court find that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984. Now having gone ahead and issued this claim I feel it is now for the Court to decide on the interest applicable and not Capital One. As such my claim still stands as before and I will be informing the court to that effect.

 

As far as the Limitations Act is concerned my preliminary approach for repayment of these default fees began on 1 February 2007 and my first charge reclaim date was 6 February 2001, keeping me within the six years. I can only assume you have misread the previous schedule of charges, however, if you still think this is the case, please explain how you have come to this conclusion...or something to this affect

 

I think you have been presumptuous in already clearing the balance on my card and sending me out a cheque – please remove the credit on this account as I have not accepted this amount as full and final settlement and when I receive the cheque I shall return it to you.

 

I would also like to add that negative information is still showing against this account and I trust you will keep to your word and remove this account from my credit file as soon as the outcome of this claim has been finalised. Should this not be rectified, I shall still pursue to court for the removal of the default notice.

 

I trust this clarifies my position that court action will continue.

 

Doo,

 

I typed a load of inserts in red for this letter and for some reason I lost them when trying to get back from previewing. I havent got time now to go back in but have added the odd one in.

Here is a pargraph I would put in if you havent used it already:

 

With reference to the interest, I must point out that I am not trying to claim statutory interest of 8%. I am claiming contractual interest (compounded daily) at a rate of xxx% APR thus being the interest that is currently applied to my account. This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer.

If you are not happy to pay me the full amount of monies then I shall be happy for a judge to decide which interest to apply.

I think your letter needs to be a little bit firmer with them to show you are not a pushover at this stage and you will be standing your ground.

Sorry I lost the red bits, Ive added a few that I could remember back in.

HTH...I feel rude pulling peoples letters apart so have tried to insert a few suggestions for you.

[doo]

Thanks so much sonja, my letter was just a quick put together, I knew it needed more work and both you and Tanz are v.good at that. You are right I need to be firm with them, I will work on this tomorrow, but am more than happy for you to pull my letter to pieces.

 

One last thing, I rang the court today and they have not entered a defence as yet, she said they are a bit behind with claims but to ring early next week and she would update me. She also said it is not for them to stop the claim and that they have until 4th May to send in defence and she advised me to send in judgement to arrive there on the 4th if no defence is issued. She was v.helpful.

 

Thanks so much for all your help tonight, especially taking the time to look at my spready, I know you were busy with the kids, I do feel my claim is as good as most others who have been paid out in full - so we shall see.

[redsonja]

No worries. I will take a look at your letter again tomorrow or even post up a revised one when you have done it. Tanz seems to be taking a brak tonight but Im sure he will have some useful info for you.

 

At least you got through to your court. I have been trying most of the day for mine and it was constantly engaged as I have 2 Halifax CCs that are up tomorrow! God know what I have to do but will keep ringing them tomorrow.

 

Speak to you tomorrow no doubt

[doo]

Bill, I did not see your post till this morning, and has lifted my spirits, have sent you an e-mail.

[AppleCrumble]

hang on in there Doo.

I think they will pay up everything as your arguements are reasoned and clear and they really won't want to go to court.

 

With me, they didn't acknowledge my claim, and if they wanted to they could have gone for a stay in order to thrash it out, but instead they are going to pay -- my claim is just under £1,000 so maybe it's just not worth their while - but I do think that they really don't want to risk going to court so they will roll over eventually.

And then you can give their tummy a good old boot :D

[doo]

Thanks apple, I read your thread today and had the same thought, I have finished (I think) my letter and will post it once they have received it. I know they must monitor this site. Have had my spready checked twice and am confident I am on the right track. Watch this space.

[c_allen]

well done for not accepting their offer, i did with halifax, and now have to appear in court to argue the C/I alone .

I advise anyone who's claiming C/I to NOT accept any offer that does not include the C/I, unless you're happy with the amount, and don't intend to take your claim all the way. keep charges and interest together, it's the best way to get what you want;)

[doo]

c allen, thanks for that, I am posting a letter today and am asking them to remove the amount from my card and when I receive the cheque I will send it back, I have not signed any acceptance of this. Not sure what they will do though about removing the amount from my card, that bit is not really in my control and does cover the charge total. I know for a fact they are paying out CCI but my claim is probably a bit larger. Do you think they will settle before court? Will take a look in at your thread later.

[reduk054]

Hi doo i have followed your link and quick read the posts, WOW you didnt let on how well you have been getting on with your cap one claim, and i say brilliant stuff

I think that the help you have had on this thread has been invaluable!

Suscribing

Red

[doo]

cheers red, letter all finished and ready to go - missed the Post Office today so will send it recorded on Monday. Once they have received it I will post it here. Will also take a letter into court on Monday as I plan to put hubbys claim in then as well (cap one also).

[Notty]

Hi Doo

 

Hope your claim goes well for you. I have a Cap One claim in they have settled the refund and that has paid the card off and they have also removed the default but I have 5 and 6 credit markers on my file and I have written to them on the 3rd April but no reply. I think you said in a thread to me that you were going to get a new card and agreement and that would automatically remove the adverse creadit. Did they do that and has the markers gone. I am at a loss what to do now. I havent written to the court yet to tell them we have settled but I am not sure what good that is now? Any ideas Doo?

[doo]

Hi Notty, was wondering how you were getting on. Cap One did indeed send me out a new card (completely different account to the old one) and gave me my old credit limit back. Now I am monitoring my credit report, they said it would be 7 days after new account up and running so will check later this week but because I didn't trust them I put in my POC that I wanted removal of all negative information. Now did you add anything like that in the paragraph on your default removal?

[Notty]

Hi Doo

 

Yes it was in my poc so hopefully if I ask them for a new card and mention I want it to get the markers off it might do the trick? Do you think they will let me have a few thousand!!

[doo]

No, they only do thousands in bank charges lol

[doo]

Have been thinking about cap one offering the purchase interest paid on accounts rather than paying the contractual that is being claimed, so I have added the purchase interest up on my hubbys claim to see what he would get if cap one do the same with him, now the interest he is claiming is around £900ish (CCI) and the purchase interest he has paid adds up to around £1,400ish - now what do you think Cap One will do with this account - suffice it to say I don't think they will want to pay the purchase interest to him. So maybe it makes sense that cap one pay some contractual and some purchase interest paid on account?

[redsonja]

Hi Doo,

 

I think they were making out they were being generous by offering all the purchase interest on your account but it was lower than the CCI. I very much doubt they would offer all the purchase interest on your hubbys account as this is a different scenario.

[doo]

Well maybe this is the reason why some people are getting contractual and some purchase interest, I have obviously been thinking about this since my offer - hmmmm interesting.

[doo]

Here is my letter that I have sent to Capital One.

 

I am in receipt of your letter dated 17 April 2007.

Please be advised that I will not be accepting your partial offer and therefore my court claim still stands for the full charges, contractual interest and court costs. I am enclosing with this letter an updated schedule of charges as of today’s date to update you regarding interest that is currently accruing daily (£2.24 daily) and will continue to increase until this matter is settled.

Once again you are denying that these fees are unlawful and that they are based on the costs that you incur. I once again invite you to provide evidence of your actual losses or pre-estimate of costs in relation to the account breaches. Your silence on this matter leads me to believe that you will not disclose your costs for reasons that remain unknown. If you choose to continue not to address this issue, you will be requested to provide this information in court, I have put it in my Particulars Of Claim (POC) and can be addressed in court.

As my Particulars Of Claim state. I am claiming contractual interest (compounded daily) at 26.94% APR. which is the rate that has been applied to my account (this information has already been confirmed by your department in a telephone call) and is the most current interest rate being applied according to my statements. The claiming of this rate is based in equity and a legal requirement for fairness and balance. As there is an express rate of interest in the contract for the benefit of the bank when it lends money, in my view there is an equivalent term which benefits the customer when the bank owes the customer money.

Regulation 5 (1) of the UTCCR states as follows:

5.(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer.

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (Defendant). The interest claimed if therefore deemed to provide an equitable remedy.

I am aware that Capital One has been paying out on contractual interest (compounded) - for numerous claims and I shall not hesitate in providing these cases to the judge.

My POC also further states that ‘in the alternative’ should the court find that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984. Now having gone ahead and issued this claim I feel it is now for the Court to decide on the interest applicable and not Capital One. As such my claim still stands as before and I will be informing the court to that effect.

As far as the Limitations Act is concerned my preliminary approach for repayment of these default fees began on 1 February 2007 and my first charge reclaim date was 6 February 2001, keeping me within the six years. I can only assume you have misread the previous schedule of charges, however, if you still think this is the case, please explain how you have come to this conclusion.

In regards to claims over 6 years it may be of interest to you to note that permission can be sought under s.32(1)(b) Limitation Act 1980 on the grounds that the claimant could not reasonably have discovered the defendant’s deliberate concealment of the facts relevant to the claimant’s right of action before the report of the OFT was published on 5.4.06. The facts relevant to the claimant’s right of action are that the defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the defendant has elected to present the charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the defendant can beseen to have been operating without accountability to its customers, and to have consciously concealed the facts. The defendant is clearly in a privileged position to have a direct means of withdrawing monies from the claimant’s account. The claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the defendant will always conduct itself with integrity. Alternatively, the claimant can seek permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and the interest thereon did not amount to penalties – Kleinwort Benson Ltd v Lincoln City Council (1999) 2 AC 349 – and that the claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5.4.06. You may be aware that claimants are now actively being encouraged to claim back charges over the 6 year period, there have been to date many successes.

When Capital One receives each months payment towards the account, unless the balance is paid in full, you have confirmed to me that the payments are allocated in this order:

1. Charges

2. Balance transfers

3. Purchases.

During the period of the last six years I have paid approximately £6,960.45 in payments onto this account, which has obviously gone first towards my charges and as you state ‘All default fees charged to any account are always charged at the purchase interest rate’. As stated above the last purchase interest rate applied to my account was ‘purchase interest 2.008% monthly’ equating to 26.94% APR.

I think you have been presumptuous in already clearing the balance on my card and sending me out a cheque – please remove the credit on this account as I have not accepted this amount as full and final settlement and when I receive the cheque I shall return it to you. In no way have I formally accepted this offer either verbally or written and you have no such proof to this effect . To make my position clear no refund is to be put onto my card and if such action has already been done without my authority then please be advised I am not accepting this and wish you to remove these funds.

I would also like to add that negative information is still showing against this account and I trust you will keep to your word and remove this account from my credit file as soon as the outcome of this claim has been finalised.

I have accordingly written to the court to inform them that you have not paid the full amount claimed and that your offer of payment has not fulfilled my claim.

I trust this clarifies my position that court action will continue.

[doo]

Also received through the post today from the court is Capital One's defence and the Allocation Questionnaire. The defence is basically most of the letter they have sent to me offering me charges, 8% stat, all purchase interest paid on the account plus my court fee. If I can I will post it up later.

 

The final bit in the defence though does go on to say what they have refunded me. Also the Capital One will now defend the claim on the basis that the correct amount has been paid in full.

 

Any comments please.

[Brad Smith]

well written letter Doo, good luck...I'll be keeping a look out to see how you progress

[doo]

Thanks Brad, it's nice to get some support, am keeping an eye on your thread too.

Must add though that sonja had a big input into letter as did sarahpp so thanks girls.

[ukaviator]

Hi doo..

 

The letter is well written, however i have one i put together for someone else on here and added a line of yours. It is short and to the point, as they already know the laws surrounding the charges they choose to ignore. Short and shows them your demands.

 

Hope this helps

 

Uk

 

 

YOUR Street

Town

City

Postcode

 

Date

 

BANK NAME

Address

Address

Postcode

Re: Account number XXXXXXXX

 

Response to settlement offer.

 

Dear [named sender or Sirs]

 

Thank you for your letter dated xx/xx/xx. I wish to stress that I will accept your offer as partial payment only towards my claim. The money transfered to my account should not be viewed as my acceptance as a full and final settlement. As my Particulars Of Claim state. I am claiming contractual interest (compounded daily) at 26.94% APR. which is the rate that has been applied to my account (this information has already been confirmed by your department in a telephone call) and is the most current interest rate being applied according to my statements. As County Court action has commenced, any negotiated settlement of this claim must include interest and court fees. Failure to comply with these points in any settlement offer means that it would not be a full settlement of my claim, and therefore unacceptable. I am a reasonable person and would be happy to negotiate to bring proceedings to a close, but in the absence of any serious attempt at settlement on your part, you can be assured that I will pursue this claim in the most vigorous manner. Should you wish to settle my claim in full, then please forward the balance of the claim (£xxxx) without conditions, and I will inform the court that the claim is settled.

 

I trust this clarifies my position.

 

Yours faithfully

 

[signature]

 

[print name]