Browni24 v Cap 1....me & boyfriend

[ukaviator]

Hi Brownie

 

The account is in dispute so no action can be taken until the dispute is settled. If they do phone you remind them of this. Also you should still pay your monthly repayments as normal. The figures will be adjusted when you get your refund. This will stop 5 calls a day to you.

 

Uk

[brownie24]

Hi Uk

 

I am struggling at the mo to keep up with the payments, I have missed two months payments....oooppps, but I am going to make a payment of £50 this month, this is all I can afford at the mo but it is not enough to cover the acutual min payment. Do you think this will be acceptable? We are waiting for some money to come through when I will clear the arrears on the account but this is the best I can do at the mo. Don't want to jeopardise the whole claim process though.

 

Have experienced some financial probs recently as boyf was off work for 12 weeks for an operation.

 

Brownie24

[brownie24]

Oh what a mess!

 

After such a promising start....finally getting to grips with CCI thingy and all that I had sent my prelim and LBA but have still not yet submitted my court claim.....due to lack of money! Partner lost his job last year and money has been v tight due to also having a little baby, so money has had to be spent on other things. Also due to lack of funds I have not made a payment on my Crap one account for a couple of months....oooopps!

 

Well now I have a notice of default served!!! My overdue amount being £479.33 (however this is mainly made up of their charges) I have to pay this amount by next week or I will lose my account and have a formal default notice on my credit file!!!! Now I really need to take some action against this, Can anyone advise with a letter of response?

 

Please help, don't want my credit file to be more adversley affected!

 

Brownie24:confused:

[brownie24]

Bump to my last post and also........

 

I decided to call Crap 1 today to see if they would put a hold on my default until they furnished me with a signed copy of the CCA.

 

Initially spoke to call centre in India but demanded to be put through to someone in England, who may have a better understanding. They gave me a phone number and I managed to speak to someone in England who told me that they would get the CCA posted out to me today, we'll wait and see. Anyway I was then transferred to collections in England and asked if they could put a stop on the default until I was in receipt of this info, they told me that there was no way they would do this and said that a formal default would be issued next week unless my account was brought fully up to date. I argued the fact that i was disputing the fees on my account and that i would be taking legal action against them for these very soon (just need to try and scrape some funds together).

 

Anyway my question in short is can they still formally default me if a) the account is in dispute and b) without me making sure they have the correct and full signed CCA? If not can anyone point me in the right direction as to what letter I should send to them and what consumer law can i quote them in order to argue my point?

 

I need to fax some repsonse to them on Monday, I was given a contact name in their legal team, in the hope of them halting the default.

 

Any help/advice much appreciated

 

Brownie24:-|

[brownie24]

Well I managed to scrape together enough money to pay Crap One so as to avoid getting a formal default registered, thought this would be much easier and less risky than trying to get a default removed.

 

While on the phone I conveyed my position with reference to reclaiming the fees on the account and informed that i would be commencing legal action againt them. On both my prelim and LBA i have included CCI claim as well but after reading some posts on here it seems they are not paying this out now, is this right? Also could someone point me in the direction of the case of restitution which I beleive may swing the case for reclaiming CCI?

 

Brownie24

[brownie24]

Oooohhh what a nightmare!

 

Having managed last month to scrape some money together last month to avoid my account being closed and a default being issued I have not been so fortunate this time!:o

 

My account is now closed and a statement of default officially issued Could someone point me in the right direction please? I am at the stage with Crap One where I need to issue my N1.......this is severely overdue should have been done last year!..... but money has been soooo tight I have not been able to afford it as yet. However now being in this sticky situation I need to take action against them. I was of the understanding that while my account was in dispute they couldn't issue a default.

 

Now this weekend I am going to issue proceedings against them but also now need to get the default removed......any advice on how I could do this? and is this likely to be successful?

 

Brownie24:(

[ukaviator]

Hello Brownie24

 

You will need to fill in your N1 and file at the court. Do not use MCOL because it will automatically stay your case.

 

The Particulars of Claim are here:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1191734.html

 

Just add a line about removing the default they have placed on the account.

 

Uk

[brownie24]

Hi

Thanks UK.

I was also thinking of sending a letter along the lines of :

Does this sound ok? and can you suggest anything else to add to add more weight?

Dear Ms Renshaw

 

Request for a True Original Copy of Signed Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974.

 

 

Account in Dispute

 

On the 11th May 2007 I wrote to you requesting refund of the penalty charges which you have levied from my account. On 23rd May 2007 you responded to this letter by offering me a partial settlement to which I respectfully declined and asked that you return to me all charges imposed on this account. As I have received no response to this matter I believe this dispute to be open and ongoing.

During a telephone conversation with one of your colleagues on ?????? where you were demanding repayments on the account I asked that before I was to make any further payments or come to a payment agreement you furnish me with a true original copy of the Signed Credit Agreement to which the operator assured me that he would send a copy out to me that day. However I have to date received no such document.

 

My requirements

 

I am today requesting a true, signed original copy of any credit agreement that exists in relation to the above account. This is a legal request for information under Sections 77/78 of the Consumer Credit Act 1974. The statutory fee of £1.00 is enclosed herewith.

 

Whilst this account is in dispute, and remains in default – I should remind you that you may:-

·Not demand any payment on this account, nor am I obliged to offer any payment to you.

·Not add any further interest or charges to this account.

·Not disclose or pass on this account to any other party/agent.

·Not register any adverse payment history regarding this account with any Credit Reference Agency.

·Not issue a default notice related to this account.

Due to my outstanding requirements I am shocked that you have issued me with a statement of default and respectfully ask that this be removed immediately. Be advised, the Consumer Credit Act 1974/2006 makes very clear that, a default may only be issued for breach of a regulated valid agreement. Further, that disclosure under the Data Protection Act is not, and cannot be processed without express consent. This consent is expressly withdrawn until such time as a true copy of the alleged executed credit agreement is provided. As no such properly executed, enforceable agreement has yet been proven to exist, any attempt at serving default, or disclosure of my data to any third party, will have no legal standing.

 

I await your final response to this complaint within 14 days of this letter, and would ask you include your proposed actions in the event that you are unable to comply fully with this final request.

 

[ukaviator]

Yes looks ok. I sent a simular one on behalf of a friend. Ms Renshaw will continue to fob you off, like so many others. They will continue to process your data, continue with a default notice, blatent abuse of all debt collection guidelines, is what they are good at. The court route is the only way.

[brownie24]

I sent a letter similar to the one above on 2nd July and also requested a CCA.

 

I have received a reply from capital one and just want to check if it is correct, how can i upload my scanned images for people to have a look at?

 

Brownie24:confused:

Edited July 21, 2008 by brownie24

[brownie24]

Just worked how to upload images so here goes, would be grateful if someone could tell me if they have complied? and what letter i should send next?

 

IMG]http://i326.photobucket.com/albums/k435/brownie24_photo/capitaloneletterpg2.jpg[/img]

IMG]http://i326.photobucket.com/albums/k435/brownie24_photo/termsofmycapitaloneagreement2.jpg[/img]

[BigBudgie]

Hi Brownie,

 

Have just read your thread.

 

Sorry to be blunt but there is only one thing you can and should do to sort out this situation.

 

File your N1 at Court.

 

You can send whatever letters you like they do not care

 

You could /should have filed your N1 a year ago!

 

Is there a reason why you haven't done so.

 

Rgds Budgie

[aciddave]

Hi Brownie24,

 

Having read all your thread, you mention you are having trouble scraping up the cost of filing your N1 at court?

Not being too nosey, but if you are in reciept of certain benefits (including the higher level of Childrens tax credit and working tax credit) you are exempt from the fee.

Being a single parent with children, I recieve the higher rate of child tax credit which makes me exempt from paying court fees. It might be worth you giving the court a ring and asking them about it.

 

I've always found them very helpful in those situations.

[banker_rhymes_with]

Hello Brownie!

 

Just worked how to upload images so here goes, would be grateful if someone could tell me if they have complied? and what letter i should send next?

 

Looks like an A4 Application Form with No Prescribed Terms, plus an additional Tri-Fold/Six "Page" Document with all sorts of Terms.

 

They are clearly two Documents, not one Agreement. One is an A4 Sheet, clearly, the other has Fold Marks between the Blocks of Text, so was a Tri-Fold Document that would've probably looked like a DL Envelope when all folded up. It appears to have six Tall/Narrow Pages. I can't see it, but I suspect it's two sides added to one Scan, so there ought to be a Scan "join" somewhere in the middle. But that may not be visible, as the Scan is pretty poop and over-exposed to boot.

 

There is no physical way these were ever the same Document.

 

The Application Form will almost certainly be a Scan so, even if they had the Original, it would not be Enforceable IMHO.

 

So, I don't think they have complied:

 

(1) This is not a Regulated Consumer Credit Agreement...it's an Application Form. If you can read it, there will be text saying "IF" they grant it, or "I APPLY FOR" etc.

 

(2) You can't read much of it, so it fails on the "Readability" issue.

 

(3) It's possible the Terms are not the ones applicable when the Card was first taken out, but can you even read them?

 

Get a few more people to take a look, but it looks to be non-compliant as far as your s78(1) CCA Request goes.

 

Hope this helps.

 

Cheers,

BRW

[brownie24]

so there ought to be a Scan "join" somewhere in the middle. But that may not be visible, as the Scan is pretty poop and over-exposed to boot.

 

There is no physical way these were ever the same Document.

 

 

That's what I thought there is clearly two black lines running accross the document - as if it may have been cut and pasted!

 

1) This is not a Regulated Consumer Credit Agreement...it's an Application Form. If you can read it, there will be text saying "IF" they grant it, or "I APPLY FOR" etc.

 

 

3) It's possible the Terms are not the ones applicable when the Card was first taken out, but can you even read them?

It is def an application as it says " if my application is accepted" and "by signing this application"

 

On the covering sheet of the terms & conditions it even says that these are the current terms of my agreement with them!

 

Is there a reason why you haven't done so.

 

Rgds Budgie

 

The only reason being that I have not physically had the money. Partner lost his job, have a young baby and mortgage arrears so every spare penny has to go towards paying this off. Also because I have left it so long i am worrying that this will go against me? Should I start the process again? Although I still view it as being in dispute Capital One stated they do not and that is why they have defaulted me!

[BigBudgie]

Hi Browni,

 

Have a read of "Court fees do I have to pay them" on the HMCS website.

 

Court Fees

 

I suspect that by simply filling in the form and providing the relevant information you could avoid having to pay a fee. Your boyfriend will probably be able to do the same with his own claim.

 

There is nothing to be scared of or worried about in filing a court claim and nothing can be said against you for the delay between you sending letters and filing a claim.

 

Capital One will fold at the stage when they have to file their defence and will refund all of your charges, plus all the purchase interest you ever paid on the account, plus statutory court interest. This will be about 1 month from now IF you file your court claim this week.

 

I therefore strongly recommend that you get your court claim, for the refund of your charges started ASAP. You can tackle the default situation as part of your claim. The account should not have been placed in default because the account was in dispute etc etc.

 

They currently owe you more back in charges than you owe them on the balance of the account and by the time you add the court interest onto your claim they will owe you even more.

 

If you need any help with filling out the court fee forms or your N1 for your court claim just ask away.

 

Budgie

[ICY]

Dont forget to include removal of default in your particulars of claim, check out my thread - ICY v Capital One to see how they have handled my claim

[ukaviator]

This is the N1 Form you will need for your claim:

 

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

 

This is the Capital One Particulars of Claim for the form N1:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1191734.html

 

Follow Bigbudgies advice, and Icy's too. If you need anything else just shout.

 

Uk

[brownie24]

Thanks everyone for the help and comments, feeling more postive now. I have phoned the court and asked them about the fees they told me that I would have to apply and fill out an exemption form and show them copies of my wage slips and bank statements, so i am off to do this today.

 

I have also spoken to Fredricksons and stoppped paying them, I have informed them that this is on the grounds that Capital One have been unable to provide me with a compliant copy of the CCA and I will not make any more payments until they do so and they have agreed to put a hold on my account for a week - so maybe they are beginning to realise that Cap One don't have a leg to stand on......fingers crossed.

 

Will keep everyone updated

[brownie24]

In my POC I will need to add a section about default removal. I have already send them a letter requesting a true copy of CCA and in this letter I stated - Be advised, the Consumer Credit Act 1974/2006 makes very clear that, a default may only be issued for breach of a regulated valid agreement. Further, that disclosure under the Data Protection Act is not, and cannot be processed without express consent.

I also made reference to the Data Protection Act - so I will have to use this in my POC, can anyone point me in the direction of a POC that also covers these points for default removal?

Thanks

Brownie24

[BigBudgie]

In my POC I will need to add a section about default removal. I have already send them a letter requesting a true copy of CCA and in this letter I stated - Be advised, the Consumer Credit Act 1974/2006 makes very clear that, a default may only be issued for breach of a regulated valid agreement. Further, that disclosure under the Data Protection Act is not, and cannot be processed without express consent.

 

I also made reference to the Data Protection Act - so I will have to use this in my POC, can anyone point me in the direction of a POC that also covers these points for default removal?

 

Thanks

 

Brownie24

 

Hi Brownie

 

All you need to do is follow the advice given by MkAndy in Icy's Capital One thread when preparing your N1 POC.

 

"Underneath the section that contains 'what the claimaints requires' - just put 'removal of the Incorrectly recorded Default Notice from the claimant's credit file' include the date it was added and the amount. If it gets to court, which it wont, you could argue that if the charges are indeed unlawful, the Default is therefore incorrect and in turn a clear breach of the data protection act."

 

Nothing more need be said at this stage.

 

Regards Budgie

[brownie24]

Well I have finally submitted by N1 claim form and here is what i have included - hopefully it is all present and correct and it may be of interest of to anyone who is about to take them on. I just wanted to check over my restitution argument for claimining compounded interest - If anyone does spot any blinding errors then please let me know

IN THE DERBY COUNTY COURT

 

 

 

BETWEEN

MISS **************

Claimant

and

CAPITAL ONE BANK (EUROPE) PLC

Defendant

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around March 2004 whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no ************ ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment was returned. (Full particulars are set out in the attached Schedule 2).

 

6.The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account plus interest levied thereon.

 

 

The Charges

 

8. The standard Terms of the Agreement in substance provided as follows:

 

a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment specified on the monthly statements of account by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £20.

 

 

Penalties

 

9. The Charges were payable on breach of contract by the Claimant.

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

12. At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that, contrary to the requirement of good faith, they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

(2) The Charges were a penalty for breach of contract.

(3) The Charges exceeded the costs which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

 

(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the published tariff of charges.

 

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17.The Defendant wrongly applied Charges to the Account totalling some ****** between 10 June 2004 and 27 November 2007 and interest levied thereon of £*****. Particulars appear from the attached Schedule 2.

 

18. On 11th May 2007 & 20th June 2007 the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

 

Compound Interest

 

20. The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 4 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

 

21. Therefore for complete restitution to occur the Claimant seeks an award of compound interest at the accounts annual interest rate of 31.54% per annum (this is the rate applied by the Defendant to the Claimant’s account). The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.

 

And the Claimant claims:

 

(1) Payment of the said sum of £860.00.

(2) Compound interest at an annual rate of 31.54% from the date of payment of the Charge to 2nd September 2008 in the sum of £****** and at the daily rate of £***** until judgment or sooner payment.

 

(3) Court costs (if applicable)

(4) Subject Access Request fee of £10 paid to the Defendant by the Claimant.

 

(3) In the alternative that the court is not minded to award compound interest, Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £222.69, and at the daily rate of £0.24p until judgment or sooner payment.

(4) Claim for the removal of prejudicial information.

a)the removal of any prejudicial information which the Defendant has passed to third parties in relation to the Account and in particular the removal of the incorrectly recorded Default Notice, registered on 11th May 2008, from all credit reference agencies since this was caused solely by the level of disproportionate penalty charges. The Claimants 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.

I believe that the facts stated in these particulars are true.

 

Dated this 2nd September 2008.

 

Signed

………………………………………………………..

[brownie24]

Just an update.......got complete fee remission based on low earnings, only wish I'd known about this sooner, kept putting the claim off as I did not have the money to pay the court costs!

 

Just waiting now for a response from Cap 1.

[brownie24]

Help and advice please.......what a cock up by local court

 

Both me and my partner took our claims to our local court mid September with completed fee remission forms due to low income and were told that we should hear something within 5 days. However a couple of weeks later still we'd heard nothing so I called them to find out what was happening to be told that the fee remission had been granted and that i should receive a notice of issue within next few days.....but still we heard nothing so last week i called them back to chase things up to be met with a whole lot of confusion and no record of our claim on their system

 

Anyway after several phone calls and speaking to various supervisors they finally found our records and it turned out that although the claims were issued on 17th September the notice of issue was never produced and the claims were not served on Capital One due to a member of staff getting them confused with the stayed bank charges claims and they were just filed away in a 'pending file!'

 

However they have now served our claim on Capital One on 29th October but they have referred this to the District Judge who has directed that these claims should be treated as bank charge claims and stayed due to the test case being issued:eek: I thought that credit card claims were not covered by this and could go ahead ? Can someone please point me in the right direction as to how I should respond to this?

 

By processing my claim in Sept I had been hoping to get the money back in January but now my whole claim appears to be on hold indefinately and whata delay there has been due to the courts incompetence

 

Help please

[brownie24]

Bump