KM_S v Capital One ***WON***

[KM_S]

At last my statements arrived (40th day would have nee tomorrow) so I am now chasing £1480.00. Now I need a bit of help, I have looked at various letters and spreadsheets and I ask do I send a preliminary letter and spreadsheet without interest or do I include it.

I am a little nervous about getting this right and dont want to make a fool of myself.

 

Cheers

[KM_S]

Thanks for that, I have just looked at the preliminary letter but it looks like one for bank charges. Is there one for credit cards?

[KM_S]

I have modified the letter accordingly, I thought you didnt put interest on the spreadsheet for the prelim letter. If you do how do you calculate the amount on a fee of £18 charged on the 26/06/2001

[KM_S]

Got it, great thanks, I will not add interest to prelim letter but if they do not respond positively I will then add it in. That would mean the new claim would be £1838.24.

Letter going off today.

[KM_S]

Prelim letter posted yesterday (29/03/07). My next question is when they refuse my offer and I send next letter do I then add the interest, I am thinking of using compounded contractual interest, this would take the claim to £3233.82 by using their current monthly rate of 2.08%. Am I right in doing this.

[KM_S]

Good idea I will look out for that thread and since my last work contract was at £24 per hour I might claim that lol. I really appreciate the help and support that this site give to newbies, maybe the banks and credit card companies will soon get the message and drop their charges all together---------- now that would be a real victory.

[KM_S]

Right after posting a thread (Capital One Interest Charges) I have discovered I have to re-do my prelim letter advising them I will be charging CCI. What I Have said at the top of the letter is that "This letter amends my letter dated 29th March 2007" and changed trhe paragraph What I require to read My statements show that you have taken £1480 in unlawful penalty charges (late payment and over limit fees) from me over the period of the past six years 20/06/2001- 08/02/2007. In addition, I claim contractual interest at an annual rate of 28.02% (compounded daily) on the above charges amounting to £2372.16. Thus, my refund request amounts to £3867.16 in total.

I enclose a schedule of the charges which I am claiming with this letter

 

[KM_S]

Jesus this gets complicated, before I post off my new prelim letter, I have read threads where people claim the purchase interest back from where the account would have been zero but for their charges so I am going to go for it, think they may bulk when they see the total hehehe. I am taking a guess but will charge CCI on that as well so should I also include this in the prelim letter and spreadsheet.

[KM_S]

Ok here is my ammended prelim letter paragraph

 

What I require

My statements show that you have taken £1480 in unlawful penalty charges (late payment and over limit fees) from me over the period of the past six years 20/06/2001- 08/02/2007 plus £386.67 which you have charged me in purchase interest from when the balance would have been zero but for your charges. Total £1866.16 . In addition, I claim contractual interest at an annual rate of 28.02%. I enclose a schedule of the charges which I am claiming with this letter

 

Like you I have hidden the actual interest ammounts on the spreadsheets, boy will they be impressed------not, claim will go up to over £4,000

[KM_S]

Right cap one havent replied to my LBA so now is the time to file with MCOL, never having done that before is there any help I can look at.

Cant do anything yet as I am still waiting for my last pay.

Just checked my spreadsheet, by the time I file with MCOL the claim will have risen to £4,500. Somehow I think they might decide to fight that.

-----More worry.

[KM_S]

Having just read through the guide to MCOL I think it would be better to use N1 at local court. Must admit having read through the guides it does look daunting im sure I will get something wrong.

[KM_S]

Forgot to add, when do you pay court fees? as I cant afford that till I get paid.

[KM_S]

Can someone take a quick look at this part of my POC and make sure I have got it right.

7. Accordingly the Claimant claims:

a) the return of the amounts and interest debited in respect of charges on the Account in the sum of £1,868.96

b) Compound interest on the said charges at the contractual rate of 28.02% of £2,664.69,

c) Interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.43.

d) In the alternative to points b and c above, interest under s.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 41p.

f) Court costs;

[KM_S]

Right at long last my employers have paid me so I can afford to file my claimits down to the court later. Before I go can someone look at my POC to make sure I got it right.

[KM_S]

Right claim filed with court, the staff there were great checked everything was right (I had to pop home and make some changes) but here is the value of what I am claiming.

Charges £1862.00

Overdraft Interest £6.96

Compound Contractual Interest £2664.69 (28.02% from 05 July 2001 - 14 May 2007)

Court Fee £120

TOTAL £ 4653.65

Plus interest pursuant to S.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £0.41 per day (£1862.00 x 0.00022 ) OR at such rate and for such periods as the court deems just.

[KM_S]

Thanks everyone, Moderator, do you require details of claim, more than happy to send details.

Lets continue to fight the fight.

[KM_S]

Merator can you contact me with what details you require?

[KM_S]

doh cant spell this time of morning, I meant "Moderator"

[KM_S]

many thanks doo ---- its the old problem "interface between chair and keyboard"

[KM_S]

Noddy73

here is the full POC, I looked at various examples posted on the forum and adapted one to suite my needs, since this one contained revious examples I thought it was best. When I took the claim to the court the staff there checked my claim and I had to make a couple of changes so I ended up with this. Feel free to use if you wish.

Particulars of Claim

xxxxxxxxxxx v Capital One Bank trading as Capital One

Account xxxx xxxx xxxx xxxx

• The Claimant has a Capital One Credit Card Account xxxx xxxx xxxx xxxx ("the Account") with the Defendant which was opened on or around 2000.
   
  2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract 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.
   
  3. A schedule of the charges applied is attached to these particulars of claim.
   
  4. The Claimant contends that:
   
  a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related 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) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.
   
  c) The Claimant believes these charges to be 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 these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.
   
  5. Interest claimed
   
  a) The Claimant claims compound interest on the charges to the Account at the annual rate of 28.02%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.
   
  The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorize the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorized withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

b) In the alternative to 5 a) , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

6. Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of penalty charges and interest in the sum of £1,868.96;

 

b) Court costs;

 

c) Contractual interest at a rate of 28.02% per annum, compounded daily from the date of each transaction to 15/05/07 of £ 2,678.63, as set out in the attached schedule of charges.

 

d) In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 15/05/07 of £425.08 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.41.

I believe that the contents of these particulars of claim are true.

Signed

 

Date: 15 May 2007

[KM_S]

Guys

How long does it normally take for Cap1 to acknowledge court file, they have until Friday and not heard anything yet. What do I do if they dont?

[KM_S]

Well the deadline was yesterday and no acknowledgement, do I phone them or let the court know?. I dont want to give them any chance of getting away with this.

[KM_S]

Just realised I have not got my T & C's. Do I need these.

[KM_S]

UK I havent got a court date yet so I will write and ask them for a copy (hope I get it in time). I take it I need a copy of the ORIGINAL one I signed.

[KM_S]

doo thanks for that if you do find link I would appreciate it. I posted the letter giving them 7 days to reply Monday so we will ask for judgment next Monday.