callingcard v Capital One

[callingcard]

The story so far:

 

I had two cards one Visa the other Mastercard from Cap One. I incurred charges for Late Payment and OverLimit when a payment arrived a day late and the charges snowballed from there. In total I am claiming back £512 on one card and £668 on the other plus contractual interest. So far I have sent a preliminary letter in which I set out my requests and a Letter Before Action. All I have had in reply has been template letters. In response to an offer of a refund of the difference between £12 and the £18 and £20 charges they made I have written a letter which may get a settlement without going to court. I am preparing for court anyway as the chance of avoiding it is probably small.

 

I am posting the letter here and inviting comments, I will not claim copyright so if anyone wants to use parts of it they are free to do so.

 

 

 

Robert Udy, Executive Office Manager

Capital One Bank (Europe) plc

PO Box 5283

Nottingham

NG2 3YG

 

Date 3rd. April 2007

REF: xxxxxxxxxxxxxxxxx

 

Dear Mr. Udy,

 

Re. Account number: xxxxxxxxxxxxxxxxxxxxxx

Thank you for the letter of 10th. March which arrived on 30th. March a week after the date of the LETTER BEFORE ACTION that I have sent to you.

I will deal with the points you have raised in response to my claim.

• The OFT report issued on 5th. April 2006 ref. OFT842. states in s1.8 – s1.10 that £12 is a threshold level above which the OFT would intervene and is a provisional measure to move the banks towards a fair level of charge. Section 1.11 states “We are not proposing that default fees should be equivalent to the threshold, and a court will certainly not consider that a default fee is fair just because it is below the threshold”.

• When I signed the terms and conditions upon opening my credit card accounts in 2000 and 2001 I was not aware of the unfair terms I had agreed to as defined by the Unfair Terms in Consumer Contract Regulations 1999. It is only in the last few months that I have become increasingly aware that default fees are not fair if they exceed the cost of dealing with the default; if they do then they are considered a penalty. You say that the fees are automatically added, I assume that this is done by the software doing the account administration which suggests that there is no human intervention; the cost is significantly less than £12. 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.
   
  

• I dispute your claim on the basis of 2. above that your fees for Late Payment and Overlimit Transgressions are fair and that as far as I know, no court ruling has yet been made on what a fair charge should be in these circumstances. Stating that these fees are in line with what other bank charge or that you consider them fair would not impress a Judge. For a court ruling a bank would have to disclose their internal costs in response to an order from a Judge.
   
   
  

In order to avoid wasting the court’s time and resources I am giving you the opportunity to reconsider your current offer and settle before I make a claim in the county court.

I require the repayment of the charges, plus contractual interest under the principle of mutuality and reciprocity in our contract. I am prepared to accept your offered sum of £196 as a partial settlement only. I also require you to remove the default notice from my credit file. As a gesture of goodwill I will give you an extra 7 days before I start court action. If I do not receive an offer to settle my requests in full by the 13th. April, I will make a claim in the county court for the charges plus contractual interest and court costs as stated in my LETTER BEFORE ACTION of 23rd. March.

Yours faithfully,

 

callingcard

 

I will post here the response, if any from Cap One.

 

 

 

 

[Ros2710]

Hi

 

Ive also just had the letter from CAP 1 offering me the difference between £12 and charges claimed, and also ignoring the interest claimed. I received it on 30th March, although it was dated 9th and i've since sent LBA.

I was unsure how to tackle it as I've only gone after banks before .

Good luck with your letter i'll watch with interest

[callingcard]

I actually sent two letters one for each account as they sent me a letter for each account. They sent forms to sign which were completely unacceptable to me as they wanted me to stop any further recovery action and accept the sums offered as full and final settlement. From what I can gather they do this with everybody and you have had the same letters as I have. I guess some people accept the offer and walk away. The letters are really to show that I have tried to settle without court action and I deliberately didn't mark them as "Without Prejustice" so they can be examined by the Judge. I am pretty sure I will have to go to court, but if Cap One do cave in and pay, as I say anyone is free to use all or part of my letter (changing it to suit their particular case of course).

 

From my experience of 3 times when I have used the courts to recover money owed to me in the course of business defendants don't get serious about paying anything until they get the summons or High Court Writ. In fact when I used a High Court Writ the man changed his attitude completely and the Sheriff's officers collected the money without too much trouble. Trouble is court action can take some time and I understand the courts are getting overloaded with these bank/credit card company charge claims.

[Ros2710]

I had a claim with Alliance for £3267. They basically rolled over and died when they got N1 claim served on 15/2/07 and I got my money on 28/2/07.

Barclays (£2019) are a different kettle of fish and are really drawing it out. The claim was filed on the same day as the Alliance one, but I am now at the AQ stage, which will be sent soon.

I am also doing a claim for my son for Capital 1 which is what I'm looking for advice for, as the £12 didn't come into it previously. Seems like most people refuse the offer we just had and go for the full amount.

My claim is only small £360 so perhaps i'll try something like your letter and see if it works

[callingcard]

Yes, try the letter, it's minimum expense. Cap One are, according to comments I've seen here, faster at settling than most other banks.

 

I have banked with Barclays since 1972. In the 1990's I had a lot of charges on my business account due to late paying customers and a rather unfriendly manager looking after my account which had over £100,000 a year going through it for a few years. I have had reasonable success at getting charges refunded except when this manager was looking after my account, she took a hard line every time. I think I still have the statements somewhere but I am reluctant to try and recover charges as I don't want to spoil my reasonably good relationship with Barclays that I have now. Also I would have to get round the Limitation Act as it's well over 6 years ago that the charges were made.

 

I still have a business account with Abbey and I am also pursueing them for the refund of £96 in charges plus 8% interest as per s69 of the County Court Act 1984. They won't get any more letters as they have refused to offer anything, so it's court action as soon as the 14 days from the date of the LBA is up. I don't care if they close the account it's got 13p in it, which has been there since I last used the account over 2 years ago!

[Ros2710]

thanks - will let you know how i get on

[Guest Battleaxe]

I had to take A & L court. it's taken six months to get Capital One to reverse all the unlawful charges and that only happened when I threatened to take then to court for Section 85 default and added contractual interest. So looks like it's off to court we go. keep writing the letters and keep addressing them to Mr Robert Udy only. never mind who responds. here is another useful contact for you in the legal department

[email protected] of course if want to play devil's advocate you use the same addy for Robert Udy.

 

You have to keep the pressure on them.

[callingcard]

I agree, keeping the pressure on them is the only way to get them to take notice. At least I have got an offer, although it's not enough I feel it's a step in the right direction. It also means that they have looked at my accounts in order to work out what to sum to offer, although there are small differences between my calculation and theirs. I think the main problem they probably have is overload - they just cannot cope with all the people asking for their money back. I don't know if they have recruited extra staff to cope with the deluge of requests for refunds.

[Br4ndyb00b00]

nice letter callingcard... have used it myself.

More as a delaying tactic for me, so can wait untill payday to use MCOL...

thanks again, and keep us informed to any response you might get!

[callingcard]

Thanks for the compliment, I did show my first draft to someone who simplified the wording a bit and suggested I cut out a couple of sentences that might annoy. She said there was no need to say that they settle many cases “on the court steps”; they know that. What prompted me to write the letter was to respond to their offer, which as I said above was a move in the right direction. However they seem to offer most people the refund difference from £12 and their charge, so perhaps it won’t have much effect. Yes, I wanted to delay so I could get the money for the court fee, I’m not sure if I will do it via MCOL or an N1, my local court is only 15mins. walk away.

 

Did you hear the story about Tom Brennan who may get a ruling from a Judge this week. The link to it on the BBC web site is:

 

BBC NEWS | Programmes | Moneybox | Court bid for bank charge ruling

 

This will be next Friday, I hope he wins but as the bank is contesting this in court it may indicate that they are confident that they can win. Or it may be another case where the bank settles on the court steps. Either way it’s an important case.

[BillyS]

I think more likely that they didn't have a choice as to whether to defend this one. If they didn't Lloyds would open themselves up to a whole other area of claims for additional damages on top of the charges and interest that is already being paid out. As it is I'm not sure I agree with what Tom is doing, as i understand it he has got all his money back, they even offered him a good sum over and above but he wanted to get the case before the courts. Personally, I don't think his motives are entirely altruistic, although he risks his entire career if he loses (a very fair possibility) he stands to gain a sizeable boost up the legal ladder if he manages to pull it off.

[callingcard]

The case was in court the week before last, I uderstand that Tom Brennan argued well against 6 or 7 lawyers representing Lloyds TSB. The commentator on the Motley Fool web site said it could be 6 weeks before a judgement is issued. Whatever the timescale the judgement will be carefully studied by people involved with Bank Charge reclaims. I have held off going to court myself, although I think I will very soon, this site has provided much useful advice.

[callingcard]

I have now started a Claim in my local County Court. I took the N1 form in on Tuesday, I had a Notice of Issue yesterday. The service date is today. So now Capital One have 14 days from today to respond. I have been reading about banks applying for stays and how to defend against them. I want to get this settled as soon as possible so I will be looking to get any stay side aside. I now have to wait to see what the response is from Capital One, they might cave in - who knows?

[Paintball]

Goog luck CC

[Paintball]

OOps, what's happened to my spelling today

[ukaviator]

Credit card claims are still being accepted, so continue as normal . .

 

Uk

[callingcard]

The court accepted my N1 form with no hint there would be any question that it wouldn't be processed or be held up by the court later on. That doesn't mean it won't be held up as a Judge can do what he thinks is appropriate and if stopping the process is appropriate in his view then it is stopped. I understand that the way around that is to claim that it is a denial of justice under the Human Rights Laws. Someone had reported on one of the BB's here that their local court has suspended the legal process on his claim.

 

I am now preparing to fight a probable stay application by Capital One. Also if they are one day over the 14 days they have from yesterday to respond I will ask for judgement to be issued, it might work.

 

Thanks for the good wishes, it's good to know I am among friends who have already been through the experience of suing a bank. I have been to court before over money claims including an arbitration hearing in front of a District Judge so I am not so afraid as people who have no court experience.

[ukaviator]

Have a look in the Bank Templates Library, there is a Stay removal section there. It does quote Article 6 of the Human Rights Act. . . Credit card claims are still ongoing ..

 

Uk

[callingcard]

I have had a letter from Capital One today offering me most of what I have claimed. They say they have sent me a cheque - there is no cheque. Before the cheque is mentioned they state that £2,454.22 has been refunded to my accounts - as far as I know the accounts are closed.

 

I need to analyse the figures to see how they have calculated them, as they say they have added 8% statutary interest, the amount they have offered suggests that they have added contractual interest at 19.4%. I need to make sense of this letter and check the figures before I decide what to do next. Quite honestly I am not impressed, the letter seems very muddled, is this their normal style?

[ukaviator]

Their letters can be quite confusing, as if 2 different departments are dealing with your claim. Some people have had 2 letters contradicting each other. It maybe worth a call today to sort out what has gone on.

You should have a cheque for the whole amount as the account is closed.

[callingcard]

I often say to others that when dealing with banks it does seem that the left hand doesn't know what the right hand is doing! I have got as far as adding up the charges from the statements and on one card I make it less than their total by £20 and on the other card I make it more than them by £20. I will check this again more thoroughly.

 

One thing they have done is added some charges from well over 6 years ago, this means I don't have to fight them on the Statute of Limitations Act. It is tempting to take the money as it will save me from some work preparing a court bundle etc. Also as they have given in on the 6 year limit I think I should settle as I don't want to have a stressful fight for an extra 300 quid.

 

No cheques have arrived in this morning post. The court will ignore their letter saying the claim is settled, they have asked me to write to the court saying the claim is settled. I am thinking of writing to them stating that unless cleared funds are in my bank accounts by close of business Tomorrow Friday the 14th. day after Service then I will ask for immediate judgement, although this may be a bit risky as I then may need to prepare the court bundle and go to court, if they think my POC are weak.

 

I have noticed that Capital One do seem to settle more readily than say Abbey who are my next target (only 96quid plus 8% interest for 5 years or so).

[ukaviator]

If they have asked you to write to the court to inform them that the claim is settled, you should get a cheque very soon. You are right to keep your case open until the money is cleared. I would'nt spend time at the moment doing the court bundle, as they are normally quite good at paying up before court.

 

The Limitations Act clause is'nt used as often as i would like to see, but it is up to the bank / Capital One to object to paying out on the older charges. I would never remind them of this clause unless they had found it themselves.

 

Uk

[callingcard]

Well nothing from Capital One in the post today. I posted a letter to them yesterday saying that I had not received a cheque from them and that if cleared funds were not deposited in my bank account by the close of business today I will ask the Court (Judge) to issue judgement on my claim. I gave them my bank account name, sort code and account number and said a CHAPS transfer will be acceptable. I implied that if the money arrived in my account today I would accept it as a seettlement for my claim even though it was £300 short of the amount I am claiming.

 

What I would like to do are the following:

 

1. Ask them how and when they have sent the cheques, do they have anything like proof of posting etc. that assure me that they have acted in good faith. ie actually done what they say they had done (and told the Court that they had done). The letter I have received from them is from:

 

Simon Walker

Executive Office

For and on behalf of Capital One Bank (Europe) plc

 

The address is:

Executive Office

Capital One Bank (Europe) plc

PO Box 5281

Nottingham

NG2 3HX

 

There is no telephone or fax number or email address. so I have no way of contacting them in a speedy interactive way. I would like a phone number so I can ask them how and when they sent the cheque and when I can expect to get it.

 

I am a bit worried about the figures in the POC. I did not include the amount of interest Cap One charged on the fees as I thought it would be rather difficult to extract the exact amounts from the statements as the interest shown was for purchases and charges. They have given me a figure for the interest they have charged on the fees, but have addded 8% interest. I would like to add contractual interest. I am thinking that when I have done the calculation I will need to ammend the the claim to put the new figures in (£35 fee for that?). This will give an answer around £2,800 or even more. Getting Judgement on that amount will be good. Or can I slip it in as a more accurate amount based on figures they have been kind enough to give me? I'll do the calculation and see what figure I get.

 

The first thing I would like is to ask them about is the cheques they say they have sent

[callingcard]

I have calculated a total figure of £3070.42 if I substitute contractual interest at 19.4% which is what I used in my original claim instead of statutary interest at 8%. I have calculated the number of days of interest at 8% as it is simple interest that is easy. I then just calculated how much compound interest at 19.4% would be on the amounts for that number of days - I have all the figures. Cap One haven't told me the date that the 8% interest runs from and from the many letters from Cap One, Debt Collection Agencies and Solicitors I cannot find an indication of when they stopped charging interest.

 

 

What Cap One are trying to do is the old trick of waving a wedge of fifty pound notes in front of a vendor and saying "c'mon look at this lovely dosh, you'll take it won't you?" the wedge is less than the asking price of course. Trouble is Cap One don't seem to understand that unless they actually wave the dosh in front of me it isn't going to move me emotionally towards a settlement.

[callingcard]

In the post this morning (along a Birthday Card as it is my birthday) was the "Notice of Acknolegement of Service Has Been Filed". Cap One have informed the court that they intend to defend all of the claim. I was half expecting this as they have a bad reputation to keep up! Waht I would like to do now is request that a the Judge issues a summary judgement. Now that Cap One say they are intending to defend all of the claim I would like if possible to to get the revised figure of £3070.42, I need to do an accurate calculation of that as it is probably a bit on the high side.

Also I am thinking I may get some costs for my time spent in preparation.

 

My claim also had a a request for the default notices to be removed from my credit history, I would like this as well. I am preparing myself mentally to go the whole way including a hearing in front of a District Judge. Some advice would be appreciated, like can I use the letter from Cap One offering to settle out of court as a demonstration of their disingenous behaviour? I do not think that Cap One's duplicity would impress the Judge.