ICY -V- Capital One

[ICY]

They have until 4pm tomorrow to acknowledge the claim, i have had nothing from them yet, will have until tuesday to call the courts and see if they have filed defence with them

[ICY]

Think i have made a major mistake

 

They have acknowledged the claim today, they have also sent me a letter which goes as follows.

 

I write in connection with the above claim you have issued against Capital One Bank (Europe) plc. I have now had the opportunity to investigateyour claim for the total sum of 519.12 which i understand is in connection with the default fees that we have charged to your account.

 

It is denied that these fees are unlawful and they are detailed in your terms and conditions and in our customer welcome pack. Our fees are based on the costs we incur when a customer breaks their contract by making a late payment, failing to make pament or goes over their credit limit. The fees are only levied when a customer breaches their contract in this way and can be avoided if payments are maintained and the account kept within the credit limit.

 

Capital one has acted in accordance with the terms of your credit agreement throughout this matter and it is clear that you have no claim against Capital One. Also after looking at you account, I can see that we refunded fees totalling to £176.00 on 14th May 2007. You have failed to state this on your claim form and therefore, I have removed £176 from the total claimed amount to avoid double payment. THEY CERTAINLY DID NOT PAY ME ANY FEES, NOR HAVE I HAD ANY CORRESPONANCE FROM THEM APART FROM SENDING MY STATEMENTS WENT I SENT THEM MY SAR

 

 

Whilst we do not accept liability for the claim, I have however, today refunded the remaining amount of your claim on a no admission of liability basis and in an effort to resolve this matter without the need for a court hearing. These refunds total to £343.12 and along with the refunds in May 2007 it adds up to the full amount requested on your claim form. OK GOOD SO THEY SAY THEY ARE REFUNDING ALL THE CLAIM BUT WHERES THE £176 GONE

 

These refunds are made purely as a matter of goodwill and in full and final settlement of claim number 7OL02509

 

You also mention in your claim that you would like the default notice removed from the credit reference agencies. You believe we incorrectly issued a default in January 2006 despite you saying you settled and closed your account in June 2005 following a successful payment plan arrangement that you say you set up with Capital One. I ACTUALLY SET UP A PAYMENT PLAN ON 02/03/05 WHICH IS PROVED BY CAP1S SCREEN DUMPS THE AGREEMENT WAS FOR £13 PER WEEK FOR 16 WEEKS I WAS AM SURE I WAS TOLD AFTER THIS PERIOD THE ACCOUNT WOULD BE CLOSED SO I WORKED OUT HOW MUCH THIS WAS (£208) AND PAID IN EXCESS OF THEIR WEEKLY FIGURE AND PAID THIS AMOUNT OFF EARLIER

 

After looking into this, I can confirm that your account did not actually fall behind with payments until July 2005 and our records show that we never agreed a payment plan with you. In fact, we would not have needed to set up payment plans before July 2005 because your account was up to date and in order - we do not set up payment plans when an account is being managed well. THANK YOU FOR BEING SO PATRONISING IF YOU DIDNT SET UP A PAYMENT PLAN WHY IS IT ON THE SCREEN DUMP YOU SENT

 

Your outstanding balance in June 2005 was £157.67 after receiving payments totalling to £40.00 that month. We did not receive any further payments from you and your account defaulted correctly in January 2006. It was not until February 2006 when you sent us a payment of £263.03 leaving an outstanding balance of £176.36, which you have never paid. AS FAR AS I UNDERSTOOD IT ONCE I HAD PAID THE AGREED AMOUNT FROM THE PAYMENT PLAN THEN THE ACCOUNT WAS THEN CLOSED THEREFORE I CANCELLED THE STANDING ORDER IN JULY, I AM ALMOST SURE I WAS ALSO TOLD THAT NO FURTHER CHARGES WOULD BE MADE TO THE ACCOUNT AS LONG AS I KEPT TO THE PAYMENT PLAN (WHICH I DID) THIS DID NOT HAPPEN AND LOOKING BACK NOW I HAD CONTINUED TO BE CHARGED THE PROBLEM IS I CANT PROVE THEY SAID THIS, i CERTAINLY DONT REMEMBER PAYING THEM £263.03 NEED TO CHECK THROUGH BANK STATEMENTS TO SEE IF I CAN FIND THAT PAYMENT

 

When we refunded the fees on 14th May 2007, this cleared the outstanding balance on your account and put it into credit by £0.64. A cheque was sent to you for this amount. The refunds we have made today have put your account into credit by £343.12 and therefore, i have sent you a cheque for this amount, which you will receive within 14 working days. THEY NEVER CORRESPONDED WITH ME ONCE APART FROM TO SEND ME THE STATEMENTS I REQUESTED I CERTAINLY NEVER RECEIVED ANY REFUND NOR A LETTER SAYING THEY WERE REFUNDING ANYTHING

 

I hope I have explained things clearly for you and we can move on from here. If you agree to the contents of this letter, I request that you contact the court to confirm the settlement and discontinue your claim, as it is your responsibilty to ensure the court is aware of your intentions. We have defended your claim at the court on the basis that we have refunded the full amount of your claim between May 2007 and todays date and that the default is correct and will not be removed.

 

Angela Wilson

[ICY]

I moved out of the address they had for me in January 2006 and any post that went there for me was still being given to me by my ex who moved in after i left, to my knowledge i have not received any default notice from capital one, which they say they issued in January 2006, but it could have been sent and not given to me.

 

Think i am going to have to leave the default as is, doesnt look like i will be able to fight it, i have nothing to back up what i am saying apart from the fact that a payment plan was set up, looks like i really have got my information mixed up, as i had a payment plan in March 2005 but had still used my card in June 05 all-be-it the final time the card was ever used, i hadnt properly examined all the documents TOGETHER, it is looking like the information i have used on my POC is incorrect, and looks like they actually was a negative balance on my account. ah well it will be removed in 4 1/2 years time, i will live with it until then.

 

At least i have won all the charges back, including the court fee if you take into account the refund they made to the negative balance, and the cheque they are sending me.

[doo]

double posting

[doo]

Icy, the amount you were defaulted for - was it all made up of charges - if it was I would stand firm. I realise you have got a bit confused but IF the defaulted balance was made up of ALL CHARGES I still think you have a case to have your default removed.

[ICY]

Unfortunatly it doesnt look like it was, i have made a serious error, if this goes into court i have a feeling i will end up with egg on my face

[ukaviator]

If the default was pretty much all charges then stand your ground. How long do you have before your court case?

 

uk

[ICY]

No date given from the court yet, looks like about 20% was from charges

[ukaviator]

You have some time then to negotiate. I would send a strong letter asking for the whole claim to be paid back, that includes the default removal. Here is a sample letter to amend for you.

 

Thank you for your letter dated xx/xx/xxxx. 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 have demanded the removal of a default placed on my account. As County Court action has commenced, any negotiated settlement of this claim must include Default Removal, 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 romove the Default, without conditions, and I will inform the court that the claim is settled.

I trust this clarifies my position.

Yours faithfully

[signature]

[print name]

[ICY]

Problem i have got is that i had a payment plan what i didnt realise is after this was cleared off i had used my card to bu something, thus, the arguement i have given both to cap1 and to the courts is incorrect, and to be honest isnt worth the £35 fee to amend th poc as i still may not get anywhere, what are the procedures they must go through to get to the default, that might be another way of fighting it, if needs be and it starts to look like i wont win i am prepared to accept the money back and leave it at that, as i did owe them money, it is my fault for not being on top of things.

 

I thought this would be the easiest, but its starting to turn into a nightmare slowly but surely

[doo]

Well you have nothing to loose Icy, I would certainly keep trying for a while - they had refused to remove Botsy's default but 2 weeks before court they have written to him to say they have removed the default. My O/H's default was removed even though only 50% was charges.

[ICY]

Well i havnt responded to cap1 just yet, but i think i have just been bought some time to decide wether its worth my fight to get the default removed, the case has been stayed, i know i can apply to get this stay lifted as it is a CC account, but i think this time will be helpful to me in that it will give me time to request the default letter ect, and decide what to do.

Notice the red text, they are contradicting what they are saying, first it states that any party can apply to have the stay lifted at any time, then says all applications to left stay must be made within 7 days, it is fine by me to wait till the end of the test case, and accept the cheque in part payment only, if this means i may have a stronger chance of fighting the default, better to keep the default for a few months than for another 4 years

 

Order as follows

 

Upon readin the court file

 

On 8th August 2007 District judge X considered the papers in this claim and upon it appearing to the court that:

(a) A test case has been issued in the High Court between the Office of Fair Trading and certain banks ("the test case") with a view to determining issues of legal principal in relation to the recovery of charges made on bank current accounts and the applicability of the Unfair terms in Consumer Contracts Regulations and other legislation to such charges.

(b) Further information in relation to the test case is likely to be available through the website of the Office of Fair Trading at The Office of Fair Trading: making markets work well for consumers.

© The issues raised in the test case will affect this claim

 

IT IS ORDERED THAT

 

1. This claim is stayed until further Order with a view to awaiting the final decision in the test case (which shall be interpreted as the outcome of any appeal or the expiry of the time for permission to appeal the first instance decision)

2. The Defendant shall within 28 days of the final decision in the test case file in court and serve on the claimant a case summary of not more than 500 words setting out the effect of that decision and their proposed directions in this claim

3. Upon receipt of the documents set out in Paragraph 2 of this order the file be referred to a District Judge to consider further directions

4. Either party may at any time, by application on notice in accordance with the Civil Procedures Rules 1998, part 23, to lift the stay

5.This order is made by the court of its own stupid initiative. Any party affected by this order may apply pursuant to the Civil Procedure Rules 1998, Part 3.3(5) to be it set aside, varied or stayed. Any such application should be made by application notice in accordance with the CPR 1998 part 23, and must be made not more than 7 days after the date on which this order is served.

[ICY]

Do i now need to do a CCA request and how useful will this be to me in this case.

 

Also how do i find out if they have used the correct procedure to file the default

[ICY]

bump

 

Anyone able to advise best way to go now

[doo]

Hi Icy, I see from your early posts that you did put in writing that you wanted copies of default notice - did you actually receive a copy of your default notice? I also did do a CCA request, it was well over time receiving a copy and I know that in a few cases they have not been able to supply this. In fact before they sent me mine I received a letter saying 'please find enclosed copy of your CCA request' only there was nothing there, also happened to someone else on here, I think they were playing for time.

[ICY]

never had default notice, will have a look up into sending CCA request

[ICY]

Thanks doo

 

I am adding this sentance onto the bottom of the S.A.R - (Subject Access Request), anyone any comments ?

 

I also request details of ALL entry’s made against me on the credit reference files, and request copies of any default notices served on myself.

 

 

Completely forgot i had added this onto my SAR, thanks for the remider doo, so what hould i do, is it worth contacting IC

[ICY]

Still not sure where to go from here.

The letter they sent me is dated 27th July and states i will receive cheque in 14 Working days, (WHY THE HELL DOES IT TAKE THEM 26 DAYS TO SEND A DAMN CHEQUE???) this has long since passed and no cheque, does anyone have an email address for the legal team.

 

I need to come up with a letter accepting in partial payment, and setting out my arguements for the default removal, i presume they will now be aware the case has been stayed at court, what is the correct procedure for getting proof they have defaulted me, and if they have done so correctly, i have never received a default notice.

[ICY]

I recently found a letter from capquest asking me to settle i think it was dated january 06 it had a settlement amount on it which we payed i am currently ripping the house apart to find this lost, found and lost again letter, it was a bright red letter, not sure how i cant find it, i am hoping this letter could help me.

[doo]

Hi Icy, contact the three CRA's and get copies of your credit report, it will show the default if it is there and I think the date. Also ask Cap One again for a true copy of the default notice.

 

Try this e-mail address, it is the legal department.

[email protected]

[ICY]

Thanks doo, i have my experian report showing the default.

In the email i shall remind them that they have failed to respond to the DPA request with all the information i asked for, i will threaten them with the IC, they are really starting to wind me up now

[ICY]

..

[doo]

Looks good to me Icy, be prepared to be patient - they don't rush, I take it you are sending this to be signed for, I would also send copy to the e-mail address above. Good luck and keep us informed.

[ICY]

Here is a copy of the email i sent them, i will also follow this up with a hard copy by post

 

I am writing in reference to letter I have received from yourselves dated 27th July 2007. I have a number of issues regarding this letter.

 

1. I am extremely disappointed to note the you have still failed to respond in a satisfactory manner, and as such if I do not receive the information requested by return, please be aware i shall be strongly considering reporting you to the Information Commisioners Office, Banking Ombudsman and Trading Standards as appropriate, for breach of the Data Protection Act 1998.

 

When I made my Subject Access Request I also requested "A complete list of transactions and charges relating to my banking history with your organisation" and additionally, where there has been any event of manual intervention in relaion to my banking business with you." Further "I also request details of ALL entries made against me on the credit reference files, and request copies of ny default notices served on myself"

 

Whilst I gratefully acknowledge, receipt of the copy statements and evidence of manual intervention, I am disapointed to note that you have failed to comply with the S.A.R - (Subject Access Request) I made on the 11th April 2007 in that you have still to provide me with copies of correspondance and a copy of the default notice you say has been served on me, this S.A.R - (Subject Access Request) gave you 40 days from receipt of the S.A.R - (Subject Access Request), which was received by yourselves on 13th April 2007, thus giving you until the 23rd May 2007, to date of this letter this now means you have had 137 days to comply with my request, this is clearly a servious breach of the Data Protection Act, accordingly, I have to tell you that you have not yet complied with you obligations under the Data Protection Act 1998.

 

The time for compliance with my request has now expired, and if you still fail to continue to provie the information requested i may apply to the County Court for an order to enforce compliance, together with damages at the discretion of the Court.

 

Can i point you to the following " A default notice has to be served (s87 (1)of the Consumer Credit Act) before a default can be applied in order to give the debtor time to recify the situation if possible. The default notice also has to conform to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 in order to be vaild."

 

I require you to supply me with:

1) A true copy of the alledged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78(1)Consumer Credit Act 1974 (s.77(1)for fixed sum credit). Your obligation also extends to providing a statement of account.

2)You must supply me with a signed true copy of the original default notice.

3) Any deed of assignment if the debt was sold on to a third party

4) I must also insist that the default is removed form my files as

unsubstantiated due to not receiving a copy of the default notice, it is my belief that you have acted unlawfully in this matter.

 

2. In your letter dated 27th July you state that

"it is clear that you have no claim against Capital One"

This is clearly untrue, and i am more than willing to allow a court to decide wether I have a claim or not, it is not for Capital One to say wether I have a claim, this is a matter for a judge to decide, and i see this comment as bullying tactics trying to put me off claiming what i am entitled to claim.

You also state "I can see that we refunded fees totalling to £176 on 14th May 2007. You have failed to state this on your claim form and therefore I have removed £176 from the total claimed amount to avoid double payment"

I have received nothing from yourselves to say that £176 has been refunded, nor have i received this or indeed any other figure.

 

3. "I can confirm that your account did not actually fall behind with payments until July 2005 and our records show that we never agreed a payment plan with you. In fact, we would not have needed to set up a payment plan before July 2005 because your account was up to date and in order - we do not set up payment plans when an account is being managed well"

I am fully aware that if an account is not in arrears then you do not set up a payment plan, however yet again the information given to me is incorrect, I would suggest you take a closer look at your records. A payment plan was set up on the 2nd March 2005 this is confirmed by the screen shot you have sent me showing the information you hold on me, which you provided me on the 27th april 2007, this agreement was made for £13 per week for period of 16 weeks I was informed that during this time no charges would be made to the account and the account would then be closed, the agreement amounts to £208 when i had paid this figure, i thus cancelled the standing order, presuming the balance

had been settled, however during this time you continued to make charge to my account, I would like to take this oportunity to request copies of taped conversations between your call centre staff and myself.

 

4. "Your outstanding balance in June was £157.67 after receiving payments totalling to £40 that month. We did not receive any further payments from you and your account defaulted correctly in January 2006. It was not until February 2006 when you sent us payment of £263.03"

I had paid the agreed amount when the payment plan was set up as i have explained above, and as such cancelled the standing order in July 2005, again had you not made extra charges to my account then I believe this balance would not have existed, you say you correctly issued default in January 2006, what you fail to say is you never informed me you were issuing default, had you have done so i would have contacted you immediatly, which is demonstrated by the prompt payment following the letter I received from CapQuest, the first correspondance I received from yourselves was a letter sent late January from CapQuest requesting payment of £263.03 to settle the account in full, I paid this amount immediatly, at that stage I didn't know that the charges applied to my account were unlawfully made, and as such most of the money was made up from charges.

"leaving an outstanding balance of £176.36, which you have never paid" The reason this amount has never been paid, is that i never knew it existed and as such am unable to pay an amount i am completely unaware of, once again i refer you to the letter I received from CapQuest demanding the sum of £263.03 to settle the account in full, how can you then say that this account still has a negative balance when i had paid a demand for the full amount stated, as you can clearly see i paid this amount off in full immediatly, and would have done the same had i had a request for payment prior to the default being issued. I am not able to pay an amount i do not know about, a demand was never received by myself for payment prior to default, in fact the only demand for payment I received was made after the date the default was issued, therefor how can you say the default was correctly issued.

 

5. "when we refunded the fees on 14th May 2007, this cleared the outstanding balance on your account and put it into credit by £0.64 A cheque was sent to you for this amount. The refunds we have made today have put your account into credit by £343.12"

You say you have refunded fees on 14th May, if this is the case then why is it only on receiving your letter dated 27th July 2007 was I made aware of these refunds, and how at the risk of repeating myself how can you py off an outstanding balance that does not exist, as refering back to the letter from CapQuest i paid the full amount requested, as for the cheque for £0.64 I would suggest you look where this was sent to as it certainly wasnt sent to myself, neither was any other corresponance, it is my suggestion that you check your records and find out exactly where you have sent this cheque , and wether it has been cashed or not, because if this cheque has been cashed then there has been a criminal offence taken place however small the amount is.

 

6. You also state in your letter of 27th July 2007 that "I have sent you a

cheque for this amount, which you will receive within 14 working days" I am still waiting for any such cheque some 32 days later,the only correspondance I have received by yourselves since i first sent the Data Protection Act Subject Access Request is the statements which were sent on the 27th April 2007 and a letter dated 27th July 2007.

 

As you have failed to comply with my requests, I shall not be contacting the court to discontinue the claim, andI will only do so on receipt of the full amount AND your agreement to remove the default from my credit file, which as I have demonstrated was incorrectly and unlawfully entered. I believe that this default has caused me significant financial burden, due to me only being offered a mortgage at a higher rate as i had a default on my file. You should be aware I am perfectly entitled to claim recompense for additional costs incurred which are down to any unlawful action.

Your payment of the full amount and removal of the default will ensure that these additional costs will not be reclaimed, if i wish to change my mortgage i will be unlikely to be offered a favourable deal due to you placing a default on my file.

When your cheque for £343.12 eventully arrives I shall be accepting it ONLY in part payment of the full amount, and will only close the County Court claim upon your confirmation of agreeing to these terms.

 

Regards

[ICY]

Suprise surprise no response from them.