MKandy vs Capital One "WON"

[mkandy]

Cant really tell about the date tbh, it seems ok though. What's PPI, payment protection?

 

So, the big question now is, how do i tackle this. Should i

• Inform the court of what Capital One have said/threatened
  
• Write a CCA Non Compliance letter back to Capital One

Or should i be doing something else?

 

I've noticed other people have had an AQ hearing at which point they brought up the CCA Non Compliance, and asked for a proper CCA. So i guess a letter to them first will be best (in the interests of settling out of Court), as i'm expecting an AQ hearing date to be scheduled or am i getting confused? Either way, some definitive steps to take would be beneficial, so i can put my mind as ease, then take it too these sly buggers.

[mkandy]

Capital One's AQ Received today, they kindly forwarded me a copy.

 

Just to quote the closing paragraph "The defendant believes the default has been recorded correctly in accordance with its duties under the credit license as responsible lenders. The refund was made without admission of liability and the defendant hopes the matter is settled"

 

Just to re-iterate, i sent their cheque back, so it's neither settled in the monetary nor default removal terms! How can it be settled!

[mkandy]

Thinking of sending this to Cap One, first thing on Monday, opinions please:

 

Cap Ones

 

Date

 

Court Claim Number: XXXX

 

 

Dear Ms

 

I thank you for your letter of xx December 2007.

 

After further reflection and advise it is now the opinion of myself and my advisers that after studying the documents Capital One supplied for our s78 (1) CCA 1974 request and subject access request under Data Protection Act 1998 that Capital One Bank, do not hold a properly executed enforceable credit agreement with respect to the above account number.

 

78 - Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

It would seem that this far, Capital One have failed to provide a true copy of the original executed agreement. The application form supplied does not include any of the prescribed terms, which must appear within the signature document. These include details of credit limit, interest payable, details of any power to vary the agreement or debtor’s repayment obligations etc. It is not sufficient for any of these prescribed terms to appear in subsequent, separated or additional documents. Please also note that the relevant terms and conditions which have not been supplied should be those which were in force at the time of the agreement being made, only these terms and conditions would allow any future variation, and bear any reference or link to the any agreement made.

 

You have now exceeded the 12 working days plus one calendar month allowed by statute and Capital One Bank are now in serious default of their obligations under section 78(1) of the CCA (1974). Consequently section (6) of the CCA 1974 now applies:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

I am of the opinion that based on the documents Capital One bank has supplied that there never has been a properly executed credit agreement in the lifetime of the account.

 

Therefore it is also my opinion that under s (85) of the CCA 1974 you could not have supplied a copy of the executed agreement each time the credit card was replaced, therefore Capital One are unable to comply with that section of the act and as such are in default. Consequently you have been in breach of s (85) since 4th April 2002.

 

Consequently section (85) of the CCA 1974 now applies:

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

and

 

(b) if the default continues for one month he commits an offence.

 

What I now require.

 

The refund of all interest applied to the account since 4th April 2002, plus the refund all charges made to my account during this time, totalling £392.76. Finally, I request that the default notice served against my credit file inaccurately is removed as soon as possible.

 

My targets to resolve this matter

 

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 settle this matter out of court, to ensure no further valuable court time is wasted.

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, there will be no other alternative but to let the courts decide. I am confident of my position and believe that I will be able to show a Judge that I was never lawfully indebted to you by the amount that is shown on the default register, or at all.

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

 

Yours Sincerely,

[mkandy]

Urgent! Need a bit of guidance...

 

1.)Should i send the letter above to Capital one, and hope they respond in a decent way

 

2.)Should i update my POC to include something around CCA

 

3.)Should i do something else?

[ukaviator]

You could mention the CCA part. Have you had a look at dpick's thread in this forum Andy?

[baslow138]

You could mention the CCA part. Have you had a look at dpick's thread in this forum Andy?

 

Can I ask a question? If the CCA hasnt been followed correctly and only an application form has been signed then are we in a position to say that because Cap 1 acted 'wrongly' ( as per dpicks thread) then they should pay all charges as per schedule 1? Will they pay up in this instance with out resorting to an N1?

 

Baslow

[mkandy]

You could mention the CCA part. Have you had a look at dpick's thread in this forum Andy?

 

Yup that's what my letter entails, i've just modified it to suit my case.

 

My biggest concern is how/if i should inform the courts. With my case being structured around Unlawful Penalties causing a therefore inaccurate default, would i also be able to argue that there was non-compliance with my CCA Request also, i would i need to ammend my whole arguement to suit?

[ukaviator]

Basically guys, you have no enforcable agreements, so you can ask for all of your charges back, PPI, and as i see it interest. They should deduct the amount borrowed in the first place, that's about it.

 

Andy, if you amend the court paperwork, it will cost £35, and you would need the N244 form. Might be an idea to approach Capital One and ask for it all back, to see what the reaction is.

 

I have an application form too, going back to 1999, so i will be going after PPI and interest. dpick is more up to speed on this with Capital One, so maybe more helpful.

 

Also i found this the other day on their website. I would use this as ammo against them in your claim:

 

On their website under FAQ's it gives you the procedure once you have filled in the form. It says :

 

Do I need to sign a credit agreement?

 

Yes. After you've been accepted, we will send out two copies of the credit agreement to you. You need to read and sign the one with the yellow band at the bottom of the page, and send it back to us. The second is for you to keep.

 

There you go, guilty as charged. . . .

 

Maybe worth copying the page.

[mkandy]

Cheers UK

 

 

Just sent a letter to Capital One, utilising the letter dpick made up, hopeful i'll get some kind of useful reply back from them, but what can you do.

 

Now that both of us have completed our AQ questionnaires, will there be an AQ hearing set up by the court? If so would it just be a case of me saying, this is no longer a monetary claim, as i'm going down the CCA route?

[ukaviator]

At the end of the day Andy, the law is there and can't be changed over night. They don't have much of a case if they were sloppy in their paperwork all these years. I feel sorry for the people who have been made bankrupt by them, and probably did'nt have an agreement in the first place.

[mkandy]

It is awful, and i'm glad that people are starting to get back at them. If it wasn't for this place, i'd be screwed for years.

 

So in terms of this case, what happens next if they tell me to get lost?

[ukaviator]

Have you amended your POC for the AQ. . ?

 

That will then be for the judge to sort out. I can't see them even turning up.

[mkandy]

I've submitted the AQ, with the standard blurb in section G around i feel their charges are unlawful, as such they should refund them, plus remove the default since it was made up of unlawful charges, and inaccurately recorded. At this point i hadn't included anything around CCA, this is my worry, that i haven't mentioned anything around the non-compliance of the request.

[mkandy]

UK have you got a link to that FAQ? I can't find it under their FAQ's section...Maybe they've had it removed!

[ukaviator]

It's here about half way down:

 

FAQs About Capital One Credit Cards

 

I have copied the pages and printed them out just in case.

[mkandy]

Excellent mate, thanks for that.

 

 

Just the wait for Capital One's reply, if it's not what i want its time for the amendment to the POC. Should i need to do this, what's the process afterwards, will we have to go through AQ again?

[ukaviator]

You won't have to go through the whole AQ part again. You use the N244 court form and file it. It will cost £35 to amend, which is not claimable.

[mkandy]

Grrrrr. Just recieved notification from the Courts. My claim has been stayed pending the forthcoming test case.

 

What's the next best option? Ask for it to be removed as Credit Cards aren't related to the test case or shall i amend the POC to change it to a CCA related claim?

[ukaviator]

You should contact the court as the test case is for Bank charges, not Credit Card charges. We have seen this quite a few times now. .

[mkandy]

Is there any templated letters that you know of?

[steven4064]

There isn't a template letter. Just write and say you assume they have made a mistake as this is a credit card claim - point out that the OFT test case only applies to personal current accounts.

[mkandy]

I need a bit of help filling in the N244 form, i'm amending my POC to include detail around non compliance of CCA, and removal of the stay placed on my claim by the county court.

 

 

Do i need to complete Section A & B?

 

Following the Application for removal of stay guide in the Bank templates library, there is a lot of information to be pasted into section C. Is this still necessary if i'm amending the POC to go for CCA rather than unlawful charges?

[steven4064]

If you are doing a revised PoC you should probbaly include everything there rather than in Part C although you need to put something in part C by way of evidence in support of your application to change your PoC - ie what circumstances, etc have changed that you need to change it. You will need to fill in Parts A and B.

 

Advice is to highlight the changed parts of the PoC in red.

[mkandy]

In part A, whats the 'order' im referring to? Sorry not totally up with the court Lingo

 

1.)I intend to apply for an order that:

 

2.)Because

 

 

I need to be certain as to what should appear in here. Part C i can just copy my original POC and make the slight ammendments, then attach a covering letter around stay removal.

[mkandy]

I've posted a letter to the courts in reply to my claim being stayed.

 

Now that i've done this, what would be the likely action if i wish to change my POC, would it be reviewed as it were, or would the stay remain?