Tanzarelli v Cap One... Â£ + default WON

TANZARELLI · December 6, 2006

Hi all,

Just thought i'd start a thread for my battle against Capital One.

I phoned for statements as my account was had been passed over some time ago to Debitas Legal Services (part of Capital One I believe) the oustanding balance stands at £738.22 however I calculate that Capital One owe me £820 in charges, so in effect they owe me £81.78.

I firstly sent the following:

Capital One Bank (Europe) plc,

PO Box 5282,

Nottingham

NG23FB

1ST October 2006

Dear Sirs

Credit Card Account Ref: **** **** **** ****

Due to recent media coverage I now understand that the regime of fees which you have been applying to my account in relation to late fees and over limit charges, are unlawful at Common Law, Statute and recent Consumer Regulations.

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 believe that your charges are disproportionately high and therefore they are contrary to the Unfair Terms in Consumer Regulations 1999. In addition I believe that your charges are a Penalty. 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. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that your charges do not reflect any actual and or real loss.

The Office of Fair Trading has concluded that penalty charges are unfair under the Consumer Contract Regulations of 1999, coupled with case law dating back to 1914.

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 calculate that you have taken £820 in over limit and late payment penalty charges to my account as well as interest, which occurred due to these charges.

Additionally, I understand you have entered a default notice against my credit record and sold my account to Debitas debt collection agency. This default occurred merely in respect of unlawful charges levied by you, or was the result of impecuniosity’s caused directly from the taking by you of penalty charges which you had applied unlawfully to my account. In addition to full repayment of the £820 plus interest, which you applied to my account, I require that you remove the default entry from the register. Please note that a mere correction or amendment to the entry will not be acceptable.

For the avoidance of doubt, if this is not done within 14 days, I will commence my claim in the courts without further warning. This action will inevitably involve you in more costs.

Yours faithfully,

Tanz

TANZARELLI · December 6, 2006

Prior to the above when I had requested my statements the first set came on 23rd Sept 2006 with a covering letter from Debitas which said:

23 September 2006

Dear Mr Tansley

Account No. **** **** **** ****

Outstanding Balance: £738.22 (I beg to differ)

As requested I have enclosed copies of your account statements.

We need to speak to you urgently regarding your account. (I bet you do as you know whats coming)

Please contact us on 0845 234 5151. (why and speak to a robot in Outer Mongolia/India)

If you don't do this we may issue court proceedings against you, without further notice, for the outstanding balance, together with court fees, interest and costs. (funny that, I was thinking the same thing, so better have a letter stating I am requesting charges to be refunded)

We are open Monday to Friday 9am to 7pm, Saturday 9am to 1pm.

Calls may be monitored for training or security puposes. Calls will be charged at local rate.

Yours sincerely

Alex Mathews

Recoveries Manager.

Then on the 27th September had the same letter all but the first paragraph which read:

Thank you for your recent letter requesting statements from us from 8th March 2003 until 20th September 2006.

This letter included another set of statements exactly the same as the first.

TANZARELLI · December 6, 2006

On the 10th October I then recieved a letter from Capital One which said the following:

Dear Mr Tanz

Thank you for taking the time to write to us about the fees we've added to your account. I understand that you think these fees are unlawful and I'm sorry you feel this way. (are you really?)

To explain, we automatically added late payment fees if your payment was missed, arrived late or wasn't enough to cover the minimum payment. We also added overlimit fees if your balance went over your agreed credit limit, which was £400. (no s**t sherlock, funny thing is that my account/card would not let me go over the limit as it would decline this if used in a shop, and it would not have let me take out money from a cash machine either. So this means that the only way it could have gone over the limit is because you have added unlawful fees to my account)

When we opened your account in February 2003, we sent you a credit canrd agreement which stated these fees. By signing and returning this to us, you agreed to the terms and conditions for the account. (i didn't sign anything that said you could break the law and slate my character adversly though did I?)

As you're probably aware the Office of Fair Trading are not challenging the right of Banks to charge default fees, but merely the level of those fees. (Well set them at about 50p and we wouldn't be in this situation now would we!!!!) Although we feel £20 is a just fee, we have reduced our charges to £12 so we are in line with our competitors. (still not good enough i'm afraid, talk to the hand)

I've reviewed your account and as a matter of goodwill, i'd like to reduce the fees we've added to your account to £12. So I can do these refunds totalling £328, please sign and return the settlement form i've included. Once I get it back i'll add these refunds to your account. (no thanks i'll wait for the lot to be refunded and the default to be removed.)

I'll then contact the agency thats looking after your account and adevise them of the new balance. (well considering its still you that won't be hard, as theres only one diget difference in the postcode)

You also asked me to remove the default notice from your credit file. We have to record accurate information with credit referece agencies, and as the default was recorded correctly I can't remove this. (I beg to differ as its your fault its there anyway, so we'll have to wait and see about this one)

I hope I've explained things clearly and you'r happy with the steps I've taken. (No not in the slightest see you in court, well prob not as you'll bottle it prior to this like all the others) However, if you have any further questions please write back within four weeks. My address is in the leaflet I've included, which also explains our complaints procedure. If I don't hear from you , i'll consider that you're happy with my response and that your complaint is closed. (Oh you'll hear from me! Oh and by the way this is my timetable not yours)

Yours sincerely

Robert Udy

Executive Office Manager

Usual templated sh*t I beleive.

The next day I recieved another letter from Alex Mathews which was the same as the first two he'd previously sent. But i'd already sent him the following on the 5th Oct 2006 so I'm just ignoring him by now:

Debitas Legal Services

PO Box 6459,

Nottingham

NG23FG

NOTICE OF DISPUTE

Re Account No. **** **** **** ****

5th October 2006

Dear Alex Mathews,

Thank you for your letter dated 27th September 2006, in which you enclosed copies of my statements from Capital One from 8th March 2003 - 20th September 2006.

In your letter you made reference to a balance, which you say is outstanding for £738.22.

I am currently in dispute with Capital One Bank, as I believe they have unlawfully levied penalty charges to my account during the period mentioned above. The amount that I have requested the refund to me is £820.00. (Even though I'm sure you already know this) I have given them 14 days to refund this amount to my account and if they don't then I will be filing a claim through the County Courts.

In addition to this I have asked them to remove the default notice they have entered against my credit record.

I am enclosing a copy of the letter which I sent to Capital One for your information.

I am happy to discuss this with you further but would suggest that you contact them in relation to this matter, as it was they who sold the account to yourselves.

Yours faithfully,

Tanz

TANZARELLI · December 6, 2006

Following on from the above I sent the following:

Dear Mr Udy,

RE: Your Reference ***/***/**-*******

Account Number - **** **** **** ****

Thank you for your recent offer of £328 as a gesture of goodwill, I must inform you that I will not be accepting this offer.

As outlined in my earlier correspondence I explained that the charges you have applied to my account are contrary to the UTCCR, furthermore in the alternative, I believe that your charges are a Penalty.

Penalty charges are irrecoverable at common law. The prcedent 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.

As I am being pursued by Debitas Legal Services for a balance of £738.22, which is because you sold my account to them, I offer you two options to resolve this matter.

You refund me in full £820.00 plus any interest and I will pay Debitas their balance of £738.22.
You settle the balance with Debitas and refund the remaining amount from the £820.00 plus any interest to me.

In addition to this I require the default notice to be removed from my credit record. As you know I only had a £400 credit limit on my account and did not have the facility to sepndover that limit. The only reason my account went over this amount is purely because of unlawful penalty chrges levied onto the account by Capital One Bank, Although in my original letter I informed you that I would start legal proceedings within 14 days, as a gesture of good will, I will give you an extra 14 days to resolve this. I fhtis is not done within 14 days, I will be forced to start legal proceedings to recover this money and to have the default notice removed from my credit file. This will inevitably involve you in more costs. You will recieve no further warnings.

Yours sincerely,

Tanz

TUTTSI · December 6, 2006

It sounds like you are having loads of fun with CAP One. The quicker you send your LBA and issue proceedings the quicker you will be paid out what is rightfully yours.

Have you added contractual interest or just 8%. I say this because the contractual interest adds up.

I issued MCOL this week so I expect to be paid in next 4/6 weeks.

Good Luck

DS

TANZARELLI · December 6, 2006

I then recieved Capital One's final response letter dated 25th October, usual templated one.

I replied with the following letter:

1st November 2006

Dear Mr Udy

RE: Your Reference ***/**/**-*******

Account Number **** **** **** ****

Thank you for your letter dated 25th October 2006 in which you issued your final response. I am very disapointed, but not surprised with your response to my previous correspondences of 1st Oct and of the 15th Oct 2006.

Firstly I must point out that you seem to consider my previous letters as complaints. I must infom you that they were not complaints they are, and always have been requests, requests which you don't seem to be taking seriously.

Unfortunately you have left me with no option but to take this matter further. I must inform you that in the very near future I will be filing a claim with the County Courts to claim in full the amount of £820.00 in unlawful penalty charges, which you have levied to my account, along with interest claimed at the annual rate of 8% pursuant to section 69 of the County Court Act, and costs. In addition to this I will be requesting that the default notice which you have applied to my credit file be removed.

I do not expect a personal response to this letter as you have made it clear that you have issued your fianl response.

Yours sincerely

Tanz

However as I hadn't got access to the £120 fee needed to file and I was concentrating on my Barclays claim etc, so this got left until this week. When revisiting it I realised that I had not sent a Schedule of Claim for Charges, so on Monday 4th Dec, I sent the following LBA (I know I have been going around the block on this one for to long already but there was a few things which I wanted to add the my final LBA, as well as including a Schedule of Claim for Charges.

This is what I sent:

Robert Udy

The Executive Office

Capital One Bank

PO Box 5281

Nottingham

NG23HX

4th December 2006

Dear Mr Udy

RE: Your Reference ***/**/**-*******

Account Number - **** **** **** ****

LETTER BEFORE ACTION

Thank you for your letter dated **/**/****

I am very disappointed that you have failed to respond positively to my letter previous letters.

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

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 account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I calculate that you have taken £820 in unlawful penalty charges.

I am enclosing a copy of the schedule of the charges which I am claiming.

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.

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

I require repayment in full of this money and removal of the default notice. If you do not comply fully within 7 days from the date of this letter, then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

In addition to this, if you fail to comply with this letter, I request without further notice a breakdown and proof of all costs involved, in regards to your actual or liquidated losses involved in any breach of contract to which these charges relate with yourselves, and that these charges reflect your true costs in relation to the said charges, and are proportionate to the charges levied on my account as defined in Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 (e). I also hereby request a detailed report of which clause in your terms and conditions each charge has been applied against.

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act. If you do not understand what this means then seek advice from your legal department.

Yours sincerely

Tanz

Section 7 of the DPA Reads:

RIGHTS OF DATA SUBJECTS AND OTHERSRight of access to personal data. 7. - (1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled-

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b) if that is the case, to be given by the data controller a description of-

(i) the personal data of which that individual is the data subject,

(ii) the purposes for which they are being or are to be processed, and

(iii) the recipients or classes of recipients to whom they are or may be disclosed,

© to have communicated to him in an intelligible form-

(i) the information constituting any personal data of which that individual is the data subject, and

(ii) any information available to the data controller as to the source of those data, and

(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

(2) A data controller is not obliged to supply any information under subsection (1) unless he has received-

(a) a request in writing, and

(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless-

(a) the other individual has consented to the disclosure of the information to the person making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to-

(a) any duty of confidentiality owed to the other individual,

(b) any steps taken by the data controller with a view to seeking the consent of the other individual,

© whether the other individual is capable of giving consent, and

(d) any express refusal of consent by the other individual.

(7) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.

(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.

(9) If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.

(10) In this section-

"prescribed" means prescribed by the Secretary of State by regulations;

"the prescribed maximum" means such amount as may be prescribed;

"the prescribed period" means forty days or such other period as may be prescribed;

"the relevant day", in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3).

(11) Different amounts or periods may be prescribed under this section in relation to different cases.

Section 13 of the DPA Reads:

Compensation for failure to comply with certain requirements.13. - (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

I also enclosed a copy of my Schedule of Claim for Charges and sent this last letter to my new found pen pal at Capital One.

See you in Court Hopefully.

Urgent Advise Needed!!!!!!!!!!!!!!!!!!!!!!!!!!!

Question (1) How do I go about claiming under ss7 and 13 of the DPA, is this done when I file my claim using MCOL, or do I do this seperately?

Question (2) Is there a POC for this type of claim and and is it different to the one I used in my claim against Barclay?

Any comments about any of the above welcomed.

Thanks

Tanz

TANZARELLI · December 6, 2006