ICY -V- Capital One

[mkandy]

Just zoomed in on photoshop

 

I would say completely unenforceable, in court obviously. I would send a letter along those lines.

 

Without reading through the rest of the thread, if your claim is for charges and default removal and you've followed the process of claiming your charged back, it may be time to file in court. Capital one have and in your case probably will remove the default too.

[ICY]

Claim has been filed in court, and stayed pending test case. At each stage i have told them my claim will involve removal of the default, they have said outright that they wont remove the default.

 

They have settled the financial side of the claim, the only thing remaining is the default removal.

 

Were do i go from here if the agreement is unenforcable, what would be the best way to tackle this with regards to the default.

[mkandy]

Have you accepted their financial settlement as yet?

 

If not, do what i did, bombard them with letters/emails stating that the entire debt what unforceable anyway as they do not hold a proper agreement, merely an application form. For me, after 3 or so letters tey buckled and settled. My case was also subject to a stay

[un1boy]

Am I right in understanding that you are fighting the fact that Cap1 have registered you as gone away?

 

What was the claim issued asking for? And why was it stayed? Credit Card charges are exempt from the OFT test case, so I think the easiest thing to do is to enter an application stating that you want the stay lifted due to it having nothing to do with the OFT test case. That way they will then be forced to attend a hearing (if they don't settle before).

 

I have had a similar thing happen to one of my mum's claims (not the GAIN part) and this is what we are having to do.

 

They will always fight the removal part, I don't really know why but the easiest way to get it removed is to get it to a hearing - they will hopefully settle before having to attend, but if they don't they will have to explain it all to a judge and the CCA is completely explicit about Default Notices and contents of Credit Agreements, so I believe they won't have a leg to stand on.

[ICY]

When /i submitted my claim is was for a money amount and a default removal, cap1 never issued me with a default notice which they say they have done, and have since registered false info about me, they have been sneaky about this though as they didnt use the GAIN section, they simply changed a field in the info section to read gone away, this despite correspondance between us all in my present address.

I asked for copies of agreement and true copy of alledged default they served on me, the result of this request is shown on the scans on the previous page, simply a template default letter and card application.

 

The claim ws stayed at Oldham CC on the judges orders in august.

[un1boy]

When /i submitted my claim is was for a money amount and a default removal, cap1 never issued me with a default notice which they say they have done, and have since registered false info about me, they have been sneaky about this though as they didnt use the GAIN section, they simply changed a field in the info section to read gone away, this despite correspondance between us all in my present address.

I asked for copies of agreement and true copy of alledged default they served on me, the result of this request is shown on the scans on the previous page, simply a template default letter and card application.

 

The claim ws stayed at Oldham CC on the judges orders in august.

 

Well mate, it shouldn't have been stayed - the easiest thing to do? Enter an application asking for a hearing to request the stay is lifted. I have had to do this for a couple of credit card claims - it's crazy considering CC claims should not be stayed.

 

Download the form from the HMCS website -if you need a hand let me know!

[ICY]

Many thanks.

[un1boy]

This should be the form that you need:

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

Let me know how you get on.

[ICY]

Well what do you know, while getting ready to print the letter off this morning to let them know i am going to apply to have the stay lifted and go to court for default removal, the postie has just dropped a letter in from crap1

 

Dear Me

 

I have spoken with X County Court who confirmed that your clim is still stayed in accordance with the order dated X

 

We indicated in our letter to you of X 2007 that we believe that we have settled your claim in full. If you are in agreement with this, we would ask that you please contact the court in writing to discontinue your claim and send us a copy as there is no need for it to remain stayed.

 

If you are not in agreement that your claim has been settled, we would ask that you please notify us in writing which elements of your claim you believe to be still outstanding. We will then be able to discuss the matter further with you.

[ICY]

The following is my letter of response, See you in court Cap1.

 

 

 

 

I consider the financial side of the claim is now settled following receipt of your cheque dated 5th September 2007.

 

However I am still continuing the claim through the County Court for removal of the Default. I wish to stress that I accepted your offer as partial payment only towards my claim. As my Particulars Of Claim state I am also claiming removal of incorrectly issued default.

 

Capital One entered a default with a default date of 19th January 2006 and default value of £438.00 It is my contention that due to your offer of a refund of charges applied to the account after the default date, that the value applied to this default is incorrect. Further to this Capitol One have also applied a gone away marker on 5th August 2007, this is an untrue marker, which is provable by the fact that I have been in communication with you since at least April 2007 (date of my Subject Access Request) signed for by yourselves, and to which you have responded to in writing, at my present address, where I have resided since May 2006.

 

Further to this I requested a copy of my Credit Agreement, and also a copy of any default notice sent to me before you filed the default with CRAs. I understand that the ‘agreement’ you sent me is in fact merely an application for a card, and I believe that the agreement will in fact be proved to be completely unenforceable when this matter comes before the court, with regards to the default notice, I asked you to provide a ‘true’ copy of the default notice you issued on me before you registered the default, you were not able to supply me with this information, a blank template default letter does not satisfy my request.

 

The only reason I knew you had registered a default against me was when I checked my credit file, at the time you issued the default I was living at my current address, however my ex partner was living at my previous address which is where you claim to have sent the default notice to, my ex was passing to me all mail received for me at that address on a weekly basis, there was at no point any default notice either sent to me at my current or previous address.

I asked for proof you had sent me a default notice, this you were unable to provide and further goes to show you have not registered the default lawfully.

 

Here follows entries you have made on my credit file

 

16/04/06

Company name: CAPITAL ONE

Account type: Credit Card / Store Card

Special Instruction Indicator: Partial Settlement

Special Instruction Start Date: 04/2006

Started: 28/07/2004

Default Balance: £438

Current Balance: Satisfied

Defaulted On: 19/01/2006

File updated for period to: 16/04/2006

 

 

29/05/07

 

Company name : CAPITAL ONE

Account type : Credit Card / Store Card

Started : 28/07/2004

Default Balance : £438

Current Balance : Satisfied

Defaulted On : 19/01/2006

File updated for period to : 29/05/2007

Status History: (brackets indicate most recent status)[ ]

 

05/08/07 (and current)

 

Company name: CAPITAL ONE

Account type: Credit Card / Store Card

Special Instruction Indicator: Gone Away

Special Instruction Start Date: 08/2007

Started: 28/07/2004

Default Balance: £438

Current Balance: Satisfied

Defaulted On: 19/01/2006

File updated for period to: 05/08/2007

Status History: (brackets indicate most recent status)[]

 

You have left negative information about me without having permission to share information about me with 3rd parties, the only permission you had to discuss information with 3rd parties ceased when you closed my account, furthermore the negative information you have recorded about me on the 5th August 2007 is in fact completely untrue, as will be proved when this matter comes before the court.

Not only is it a breach of the Data Protection Act 1998, it is also my belief that you may have committed an offence under the Fraud Act 2006.

 

In summary I hereby request you remove the default entry made on my credit file, as this has not been lawfully entered, Capital One failed to serve a default notice on me, and have also failed to supply me with a copy of the original default notice despite my request.

On requesting a copy of my CCA you have sent me an application, which does not contain the required information.

 

Should you wish to settle my claim in full, then please reply confirming your intention to remove the default notice which is left on my credit reference file, and I will then inform the court that all parts of the claim are completely settled.

 

I trust this clarifies my position.

 

Yours Sincerely

[un1boy]

Sounds good.

[ICY]

Glad you said that, cos its off recorded in the morning, didnt really fancy rewriting it pmsl

[steven4064]

For future reference, should you need it, the legislation to get them to remove incorrect inforation (ie the defaults) is section 14 of the DPA 1998. You can also ask for comensation under section 13 for losses due to not being able to obtain credit at advantageous rates of interest.

[ICY]

hmmm, might just edit that letter after all, thanks Steven

[un1boy]

For future reference, should you need it, the legislation to get them to remove incorrect inforation (ie the defaults) is section 14 of the Data Protection Act 1998. You can also ask for comensation under section 13 for losses due to not being able to obtain credit at advantageous rates of interest.

 

Interesting.....

[steven4064]

The relevant sections (s14 goes on a bit about the court verifying destruction but I haven't bothered with that):

13 Compensation for failure to comply with certain requirements

 

(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.

 

14 Rectification, blocking, erasure and destruction

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

[ICY]

I found those parts and added them to the letter, never got chance to get to the post office yesterday due to being stuck in meetings all day, so will send it registered on monday.

[un1boy]

I found those parts and added them to the letter, never got chance to get to the post office yesterday due to being stuck in meetings all day, so will send it registered on monday.

 

Great. Good luck - keep us all updated!

[ICY]

Steve, can you move these posts to my thread in order to nothijack ICY's thread?:

 

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach-new-post.html

 

Yes, I do have a default amrker and have a hearing scheduled for a couple of months time.

 

 

No worries mate, i dont mind at all if it means you get an answer

[un1boy]

Aw thanks ICY.....did you get the letter sent?

[ICY]

yup its gone, BUT, i forgot it needed to go reg, i sent it standard mail, big mistake, i have no proof i sent it unless they respond to it.

Cant believe I did that, I always send EVERYTHING reg post, the worst thing is i sent 2 AQs off to court same time which went special delivery (had to be there by next day so needed guarenteed)

[un1boy]

yup its gone, BUT, i forgot it needed to go reg, i sent it standard mail, big mistake, i have no proof i sent it unless they respond to it.

Cant believe I did that, I always send EVERYTHING reg post, the worst thing is i sent 2 AQs off to court same time which went special delivery (had to be there by next day so needed guarenteed)

 

It'll be ok - just resend if you don't hear from them!

[ICY]

One thing i have just seen on my credit report is i had one other default, an account with a different company, which defaulted after moving a while ago and i forgot i had the account, as soon as i saw the default on my credit file i contacted them and paid up as quick as i could, the default was still showing on my credit file i paid up about 2 years ago, i was going to tackle these once i had sorted cap1 to ask them if the would consider removing the default, but looking at my credit file and it isnt there, they seem to have taken it upon themselves to remove it, i wonder if i am getting a name for myself lol

 

If only cap1 would be as polite lol, guess its gonna have to be the hard way.

[ukaviator]

You've scared em Icy ...

[un1boy]

You've scared em Icy ...

 

indeed