MKandy vs Capital One "WON"

[mkandy]

Will a letter (recorded obviously) be ok? There are a few decent responses i've seen that i could use. Also would i now need to write to the court to confirm i have not accepted settlement?

[mkandy]

Sending this today - opinions:

 

Hayley Marriott

Executive Office

Capital One Bank (Europe) plc

PO Box 5281

Nottingham

NG2 3HX

 

19th November 2007

 

Re: County Court Claim number **********

 

Dear Ms Wilson

 

I write in response to your ‘settlement offer’ letter dated 15th November 2007 and acknowledge receipt of this.

 

I reiterate that my claim is in 2 parts and they are intrinsically linked.

I thank you for your attempted settlement, but since you are unwilling to see the correlation between the unlawful charges imposed on my account and the subsequent default notice, I must inform you that I do not agree to the settlement offered and my claim will continue through the courts.

 

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.

 

At the time of the defaultnotice, you had imposed £322.00 in unlawful penalties. By offsetting this amount against the actual balance of the account, my financial position would have been a balance of £19.00 – thus the information passed to Credit Reference Agencies was inaccurate.

 

In your settlement offer letter, you refer to the position of the account and state “The fees were not the reason your account defaulted…”

With this in mind, it is clear that you understand the basis of my argument. Whilst you are attempting to persuade me that those charges were not unlawful, I would remind you that I am fully convinced that they are. It is a County Court Judge that you will need to convince otherwise.

 

Should you wish to review your position with regard to removing the default from my credit files then I would be more than happy to enter into further discussion with you in the hope that you might avoid wasting the court’s valuable time.

 

 

I trust that this clarifies my position.

 

 

Yours faithfully

[Fully_charged]

Letter looks good.......waiting to hear from them prior to my claim date for default removal....

[mkandy]

Default removal will take it all the way mate.

[mkandy]

Should i be informing the court of the offer from Crap one (the one i'm declining)?

[Fully_charged]

Should i be informing the court of the offer from Crap one (the one i'm declining)?

 

 

I would........we are all well aware Cap One play games......

[mkandy]

They cant claim settlement, as i'm the claimant though.

 

I will wait till the cheque arrives then send them another rejection and inform the court. Think i may aswell ask for an AQ too.

[mkandy]

I'm really bored today, so using the power of the internet i decided to look for Capital One people on Facebook. Ellie Renshaw is on there! For some reason i expected her to be a nasty old looking woman - doesn't appear so!

[WendyB]

Well what you need to do is get accepted as a friend (or is that Myspace?) then if you get nowhere with Crap One copy it to her facebook page lol. Perhaps thats not really her photo - she's just going for the sympathy vote hoping that if you see her as a real person you'll be nice to her....

[mkandy]

To be fair they are all just people doing a job, i was in their position 3 years ago, it's not a very nice industry to work in. I found that i had to leave empathy at the door, and just remember that banking was numbers, and forget that people's lives were being affected by the actions of the bank.

 

 

Anyway...UPDATE:

 

Cheque Recieved from Capital One as full settlement of the claim. I have sent it back with a letter stating that i'm not settling without the default removal. I'm going to contact the court and ask for the AQ.

[mkandy]

Letter sent to court today

[mkandy]

SHOCK HORROR!!

 

Capital One have submitted a defence to my claim, but wait, this is just the same letter they sent me as a 'full settlement'.

 

The court has also sent me an Allocation Questionnaire. I'm going to fill this in and return it post haste.

 

Any further advice?

[ukaviator]

Did they just say that they intend to defend?.. If they have just said that, then this is normal. They usually pay out in a few days after that. Hold fire on the AQ for a couple of days, as there would be a fee to file it.

[mkandy]

On the front of the AQ there is a annoation 'No Fee' added by the court?

 

Standard defence though yes, was going to send it off tomorrow if there is no fee though

[mkandy]

Completed the AQ, and have appended some relevant detail to Section G of the AQ. Also included a copy of the letter i sent to Capital One confirming that i did not accept their offer and why.

 

As a gesture of goodwill, i'm sending Capital One a copy of the AQ too, might move them along a little bit!

[mkandy]

Update - Scary Response from Crap One:

 

I have submitted my AQ and sent a copy to Crap One so far, this is their response.

 

I am writing in reference to the claim you have against Capital One Bank. I have reviewed your claim and see we have agreed to pay your claim in full. I note however, that you will not discontinue your claim until the default recorded by Capital one is removed from your credit file.

 

The terms and conditions of your credit card agreement set out that they circumstances in which information may be recorded on your credit file. The terms and conditions make it clear that if you fail to pay at least the monthly minimum payment on time, go over your credit limit or break any other terms of your agreement and any such breach is irremediable, material or persistant, then such information may be detailed on your credit file.

 

When you applied for your credit card in April 2002, you signed a consent form which states 'The credit reference agencies will record details of Capital One's search and my application. You may also add to my record with credit reference agencies details of how i conduct my Capital One account (including defaults)".

 

As responsible lenders we have an obligation to ensure that the information we report is accurate and that it will mislead future lenders. There is a consistent approach for financial institutions to record account management activity in order to assess your credit worthiness. The practice is in accordance with the Data Protection principles, guidelines issued by the information commissioner and our consumer credit license.

 

Since your account was opened, you made two payments in eleven months before your account defaulted. In accordance withh the terms of you agreement you are required to pay a minimum payment monthly.

 

The default recorded shows that you did not manage your account in accordance with the terms and conditions of your credit agreement and did not respond satisfactorily to requests to bring your account up to date.

 

On the basis of the above we cannot remove the default we have recorded on your account and on this basis cannot comply with your request.

 

In order to avoid taking up further court time we invite you to discontinue your claim. If you refuse to discontinue we reserve the right to draw this letter to the court's attention to seek an order for costs.

 

I trust the above has clarified our position in full for you.

 

Racel Howey

Litigation Paralegal

For and on behalf of Capital One

 

 

Can they claim costs against me, surely not as it's small claims track. What's the next best step!?

 

Also worth adding, they have replied to my CCA request, with an Application Form...which is obviously not in full compliance with CCA. Should i draw this into the arguement?

[ukaviator]

Hi Andy

 

If the default amount was made up of costs, overlimit fees etc, and you can prove that, then you may have a case. They have said in their letter, that you have paid 2 payments in 11 months. Was this when your account was in dispute?.

 

If it was'nt in dispute when they defaulted you, then default removal would be difficult, and it could be costly for you.

 

I would seriously consider looking at the application form, as this is'nt an enforcable agreement. Have a look at dpick's thread in this forum for more guidance. He has just posted what he intends to do.

[mkandy]

The default amount is £19 less than the total amount of charges. This was a long time ago, however at the time i was unable to pay due to other financial commitments and escalating charges from Cap One.

 

Throughout this case i have contested that the charges were the reason i could went into default, though i also requested CCA as a back up as it were. As you say, CCA isn't enforceable in, and i'd obviously like to settle out of court, so i think i may argue this case too.

[mkandy]

I think it best that i go down the CCA route, however, as i have already submitted my court claim, how do i factor this into my arguement? Should i just send a CCA aimed letter to Cap One? Finally, Should i also make the courts aware of Capital One's letter?

[ukaviator]

I do, too looking at your options. You have an unenforcable agreement.If you can post the form here for us to look at, we can confirm this. Just remove the personal data, address etc.

 

Have you read dpick's post?

[mkandy]

I have yeah, it looks good, i've also been in touch with Elizabeth1 who's had the same situation and won. Right now, im more concerned about the POC i submitted as it didnt mention CCA, but now it would appear the case is going that way.

[ukaviator]

If you do need to amend your POC, you need to fill in the form N244, and it will cost £35, although that cost may have changed slightly recently.

 

This cost you can't recover, but worth it if you can get clear of them and get your refund ..

[mkandy]

Would you recommend i change the POC? I dont mind spending £35 if it gives me a bit of security as it were.

 

Here is my apparent CCA Form....

 

[ukaviator]

Hi Andy

 

Pretty much the same as MRSC's, an unenforcable agreement. Did you notice the date on the right? .. . Has it been overwritten?

 

Also the PPI box has'nt been ticked.

 

Andy i have asked the lads to look over it, as they have been there themselves.

[diskmandave]

Completely unenforceable application form. Not a single prescribed term on the whole document.

 

What are the first 2 words on the document in the top left hand corner in big white capital letters...?

 

Regards, Dave.