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Hi,

 

Got our first SAR response today and I have put together the following prelim. Any comments please.

 

 

 

Jessica Dubbeld

Legal Department

Capital One Bank

4th Floor

Loxley House

Station Street

Nottingham

NG2 3HX

Request for repayment of penalty charges

Dear Jessica,

 

ACCOUNT NUMBER: xxxx xxxx xxxx xxxx.

 

Thank you for your letter dated 15th May 2007 with the enclosed list of penalty charges that have been applied to my account with you.

I am writing to ask you to refund to me the charges which you have levied from my account from July 2001.

I now understand that the regime of fees which you have been applying to my account in relation to late payments and exceeding my credit limit are unlawful at Common Law, Statute and recent consumer regulations.

If you contend they are not unlawful, please demonstrate such by providing me with a full breakdown of the costs to which you have been put by as a result of my account activity. This would reassure me that your penalties really do reflect your true costs.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Please be advised that the £12 fee mentioned in the OFT report does not constitute a recommended level of penalty. I will not accept a part refund in accord with your revised £12 penalty charge.

 

May I ask you to refer to the terms of our contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

The concealment of the true nature of your charges has prevented me from asserting my right until now.

 

I calculate that you have taken £962.00 plus you have charged me interest on this amount at your current rate. This the true cost to me is far greater that £962.00. In an attempt to reach an amicable settlement, I am prepared to waive the interest you have charged me on the £962.00 taken from my account during the 6 years I have had a credit facility with you.

However, I am entitled to contractual interest at the same rate due to the implied term in our contract based on the principle of "mutuality" or "reciprocity"

 

I enclose a schedule of the charges I am reclaiming with this letter. The total amount to be repaid is £2357.83.

 

Additionally, you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity’s caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

The money I am owed as a result of your unlawful charges far exceeds the current balance of the account.

 

In addition to full payment of the sum mentioned above, I require that you remove the default entry from the register which has been brought to my attention as a result of a recent enquiry made to a number of credit reference agencies.

You did not issue a notice in accord with the Consumer Credit Act 1974.

Please note that mere correction or amendment to the entry will not be acceptable. I am reporting this matter to the financial services authority and the OFT.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or you do not respond positively within this time period, I shall send you a letter before action giving you a further 14 days in which to resolve this matter.

I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a county court claim at the expiry of the second deadline.

Summary

 

The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by you;

iii) exceed any alleged actual loss to you in respect of any breaches of contract on my part.

v) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich you which exercises the contractual term in respect of such charges with a view to profit.

 

The contractual provision that permits you to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

I expect you to repay the charges with compound interest under the principle of mutuality and reciprocity in the contract between us, using your rate and method specified in our contract.

My grounds for seeking restitution of the compounded contractual rate of interest is that the you would be unjustly enriched if my entitlement was limited to the statutory rate of interest should it be necessary to make a claim in the county court as you have had use of the sums and would have used these sums to re-lend at commercial compounded rates.

I contend that the taking of unlawful penalties from my account is deemed as borrowing. Therefore, under the principle of mutuality and reciprocity in the contract between us, I have calculated compound interest at your borrowing rate of 1.935% per month.

Yours Sincerely,

 

 

1970

It's going to be an interesting year...

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Good stuff. You'll get your money back

P

'Fortune favours the brave.'

 

 

 

 

 

 

 

Any advice given is purely on the basis of my own views and opinions and offered in good faith.

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  • 4 weeks later...

Hi, they have replied offering £400 which is the difference between the old charge and the new £12 charge.

 

I'm sure you can guess my reply.

 

1970.

It's going to be an interesting year...

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By the way Capital One'rs, the £400 offer letter stated that it would be paid to Arrow towards the outstanding balance.

 

Do they have the right to do this?

 

The balance is £1000 and if we reclaim the £2357 there will be enough to clear the debt and bank the rest.

 

However, I wish to decide for myself how, when and how much I pay to Arrow to clear the account.

 

Any ideas?

 

Cheers,

 

1970.

It's going to be an interesting year...

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Who are Arrow?

 

As there is no reference to them in the beginning of your thread.

 

I am guessing, that they are a DCA.

 

If they are, and if you have a debt with 'Bum'...and they have sold your debt onto a 'third party' then Cap1 and the third party are entitled to offset any repayment owed towards you for 'monies' that you may currently owe to them.

 

And of course, if the DCA can legally prove that they 'own the debt' from you and have your original Credit Card Agreement...with your signature!

 

 

Jordy :D

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Yep they are a DCA although I am in dialogue with Cap One re the charges. Therefore, I will go with the offset option.

 

Cheers,

 

1970.

It's going to be an interesting year...

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Go for the whole amount. When it comes to getting your charges back, take no prisoners is my advice.

 

Uk

WARNING TO ALL

Please be aware of acting on advice given by PM .Anyone can make mistakes and if advice is given on the main forum people can see it to correct it ,if given privately then no one can see it to correct it. Please also be aware of giving your personal details to strangers

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  • 4 weeks later...

Update: N1 form posted to Court yesterday claiming £3300 including CCI and court fee.

 

Cheers,

 

1970

It's going to be an interesting year...

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  • 2 weeks later...

Here's an update:

 

Capital one were due to acknowledge the claim at the court by today.

 

However, I have received a letter from Capital One dated 23rd July.

 

The main points of the letter are:

 

1. I am claiming £700 back which is the interest they charged me on the fees. They say in the letter that interest on fees is charged at the purchase interest rate and they say that the total amount of interest charged to me at this rate including on my purchases is only £200 so they couldn't have charged me £700 just on the fees. They could be right here. The purchase interest rate is 1.935%. How do I turn this into an APR to put in to my spreadsheet?

 

2. Without admitting liability, they have refunded the following:

a. all purchase interest ever charged on purchases and fees to the value of £200.00.

b. £260 which they calculate is the s69 interest I would be entitled to if it came to a judgement.

c. £900 (all the penalty charges)

d. £120 court fee.

 

3. That comes to £1480. £1000 has been paid to Arrow the DCA and the balance is being sent to me by cheque which I should get in 7 days according to their letter.

 

4. They have sent a defence to the court saying that the claim has been paid in full and they have requested that I contact the court to say that I am not proceeding and to close the case.

 

So, in short, my claim is for £3300 and they say they have paid out £1500 which I have yet to see.

 

If my calculation in section 1 is wrong and I deduct the £700 from my claim, that still leaves £1100 short which is my CI claim.

 

What should I do?

 

Is it still worth carrying on to see if they pay CI at the last minute?

 

Cheers,

 

1970 (Mr)

It's going to be an interesting year...

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Another question, is it also too late in the day to start asking for removal of default and detrimental information? We have only just found this out by requesting a report from experian.

 

Cheers,

1970

It's going to be an interesting year...

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Contracual Interest at their rate of 29% from 2001 until now adds up.

 

The £3300 also includes the £120 court fee.

 

Essentially, they have taken the money from me unlawfully and leant it to their customers over and over again at high interest rates. In other words made a huge profit.

 

1970.

It's going to be an interesting year...

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No, as I do not have the opportunity to abuse power in the same way that the banks and credit card companies do. There are no investment products for consumers that offer such huge returns. The banks have created this lucrative market for themselves.

 

Across all the accounts I am looking at over the last 6 years, I am in the process of reclaiming £42000 in penalty fees alone, before I even look at CI claims.

 

1970

It's going to be an interesting year...

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