Atlantic vs. Capital One

[Atlantic]

There's just another little nugget of info - but i've been told all the staff at the call centres have had briefing sessions on all this charges business..... making them a bit more "careful" of their working on the phone to us customers.......

[Atlantic]

I'd really appreciate any final thoughts on the following final LBA - which I'll send out next week....... This is me giving 'em time to digest the rejection letter I sent them above..... even though they simply credited my account with "funds" and didn't even tell me/ write to me saying what those funds actually were......!!!

 

 

I am very disappointed that you have failed to respond to my letter of 15 June 2007 with full and final settlement of total outstanding charges, £728.32. I now understand that the regime of fees which you have applied to my account in relation to card misuse, cheque/direct debit/standing order refusal, referral fees and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches of contract, in order to reassure me that your penalties really do reflect your costs.

I would draw your attention to the terms of the 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 credit card account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I calculate that you have taken a total of £728.32, representing £420.00 in penalty charges and £110.04 in interest on penalties as well as £198.28 in compound interest levied on both the charges themselves as well as the interest charged on the penalty charges (calculated from a monthly interest rate of 2.21% or annualized rate of 30%) which you have levied from credit card account XXXX-YYYY-ZZZZ-SSSS since inception. I am enclosing a copy of the schedule of the charges which I am claiming. I have already sent you a copy of this in my original letter of the 15 June 2007.

I require repayment in full of this money. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus my costs and without further notice.

yours faithfully

Atlantic

[Atlantic]

I have gotta admit......... their charges regime is amazing - I've only had the card for just over 2 years and already £420 in charges alone (let alone all the compounded interest on top of that) has come off.......

 

This charges stuff is a real money-spinner for them...... at least up until now

[Atlantic]

just received letter from Capital One - making their offer in line with the cash they stuck on my account....

 

it does seem from what I've read that they fight a bit and then cave in before the actual court date............ so i'm gonna put this to the test as I'll send of the second LBA on Toesday 27th June and then wehn I get back from family holiday right at end of July I'll submit my N1 and get court proceedings underway.......

[ukaviator]

Hello Atlantic . .there is a pattern to the claiming back of your charges. Keep to your timetable and follow the procedures. You seem to be in control of your claim.

 

Uk

[Atlantic]

Thanks 4 the moral support and advice uk........ it's very welcome - especially so as I know i'll be moving into grey areas (at least for me) of the legal system with all my claims now......

[Atlantic]

just a quick update..... as this is rapidly becoming a blog-spot....

 

actually I don't have much to update - other than the second I come back from family hols (end-of-july) I will be straight down the court house to stick in my N1 ....that is unless they will have come in with a suitable offer in the meantime, which I very much doubt!!

[Atlantic]

I have prepared a (very) early draft of particulars of claim for Capital One as am going away on family hols.....

 

Any advice, help, and comments would be really welcome....

 

IN THE CENTRAL LONDON COUNTY COURT

IN THE CASE BETWEEN:

CLAIMANT

Atlantic

 

- and -

DEFENDANT

CAPITAL ONE BANK (EUROPE) PLC

Legal Compliance Specialist,

Trent House,

Station Street,

Nottingham. UK.

NG2 3HX

Particulars of Claim

1. The Claimant had a Capital One Bank (Europe) credit card account number XXXX-YYYY-HHHH-ZZZZ, opened on or around 1st February 2005 which will be referred to as “the Account” henceforth.

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

3. During the period in which “the Account” has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Overlimit Fee Charge”, “Late Payment Fee Charge”, etc.. on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

4. Schedules of the charges for “the Account” is attached to these particulars of claim as follows:

Appendix 1 - Summary of Charges levied against Account number XXXX-YYYY-HHHH-ZZZZ

Appendix 2 - Copies of the statement pages that itemize the charges and interest charged thereon for Account number XXXX-YYYY-HHHH-ZZZZ

5. The Claimant contends that:

a) The charges debited to the Account:

i) are punitive in nature;

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

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant;

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

b) Further to 5(a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

c) The contractual provision that permits the Defendant 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.

d) In the alternative to 5(a), (b) and ©, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

6. The Claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults

7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

8. Accordingly the Claimant claims:

a) The return of the amounts debited between 1st April 2001 and 20th June 2007 in respect of £444.00 in charges and £120.48 in credit card overdraft interest applied against “the Account”.

b) Compound interest on the said charges at the contractual rate of 30.00% of £201.83

c) Interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.41.

d) In the alternative to points (b) and © above, interest under section 69 County Courts Act 1984 at the rate of 8% a year and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.12

e) Any applicable court costs;

f) The statutory charge for making a section 7(1) Data Protection Act request in the sum of £10.00, as advised in the Claimant’s Data Protection Act request of 23 May 2007

9. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

Statement of Truth

Dated this 1 August 2007

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

Signed:

Atlantic

[Fat.Controller]

Atlantic

 

What are your thoughts on the following decision:

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/97691-contractual-interest-precedent-lost.html

 

 

Its a High Court ruling and appears on first reading to put paid to CCI claims in County Court.

 

FC

[Atlantic]

Thanks a lot for this FC - I will read have a more thorough read of it tommorow.

 

I did put in section 8 (d) which is my way of giving flexibility to the decision over CI.

 

This is the reason why I figured I'd post up my N1 and PoC now, some 3 weeks before I would issue it - just so I can get advice like yours...

[Atlantic]

FC - I'm going to go over it in fine detail tommorow........ you're right - first glance doesn't look too promising, but then after reading it a little more I think that you can still go for CI, if 1. you're prepared to be flexible and 2. do quite a bit more reading up on how you apply it - but certainly under "mutuality" principle you won't get away with it.....

[Fat.Controller]

Atlantic

 

Having read more threads on this forum it does appear that Cap One are paying out full claims inc. CCI before the court date. So that would suggest keeping CCI in the N1 ( wish i'd left it in mine now!)

 

I am however undecided on what to do with a £2K + claim against Barclays which is now due an N1. I think SC&M would defend a CCI claim now if they get wind of LJ Underhill's recent ruling.

 

FC

[ukaviator]

It does seem to be a Lottery with the Credit Card Companies. Some pay some don't. Going to court alone for CCI is risky.

 

Uk

[Atlantic]

It might be nothing - but I sort of had the impression it was ok to go for credit cards for CCI, but not banks.

 

It was a few months (back in February) that I last seriously looked into this - but at that time it just seemed it was an "acceptable" thing to go for with credit cards but not with banks - as in if you do go for it with banks their solicitors seemed to be very effective at heading people off.

 

I did have a nasty feeling that my two credit card applications were gonna be headaches......

[Atlantic]

Hi ukaviator ... and anyone else out there......

 

I've just been reading up on all the OFT stuff (as I've been away during July) and would *really* appreciate your advice: is it still ok to go for CC claims???

 

I know now the banks are applying for stays on court claims - at least until the test case goes through - is it the same with CC's?

 

Please please advise...... as I've now really got outstanding claims with only Barclaycard and Cap 1.

 

Atlantic....

[ukaviator]

It's business as usual for us with Credit Card claims, as they are under different terms. There are a couple of companies trying to put people off by referring to the Test case. Get your claims in and follow the procedure.

 

Uk

[Atlantic]

Thanks uk.....

 

I was claiming a very small amount from Barclays and received a leaflet going on about the test case stuff, then I received a second letter from them telling me that they would apply for a stay in court on my claim.

 

I could tell something was up....hence I checked out CAG and Martin Lewis's site...... and I just needed to know if it extended as far as CC claims too - which thankfully you've just confirmed that it doesn't......

 

I sort of expected all the banks and regulators to wind up doing something but it'll still be a nasty shock to all the tens of thousands of folk who had aspirations of getting them into court as things seem to have been successfully stalled!!

 

Thanks for your advice....... I'll stick at my 2 claims (Barclaycard and Cap 1)................