Bart V Capital One

[Shira]

Hi everyone,
I am helping my friend out for reclaiming the charges. He sent out a SAR letter to Capital One with £10 postal order. They replied stating that it is no longer dealing with his account. It has been sold to Lowell Group. They will be contacting him shortly but the 40 days has expired & no information has arrived yet. But I am not sure which one I should send a letter for failed to supply the data to Cap one or Lowell Group?

Any advice will be grateful
Thank you

[enaid]

Re: Bart V Capital One

Did they cash the postal order or return it?

[Shira]

Re: Bart V Capital One

Thanks for the reply, They haven't return it but he doesn't know if it has been cashed in. The only way to find out is to fill out a P58 form & the post office told him it can take up to 6 months!

Thanks

[enaid]

Re: Bart V Capital One

In any case Cap 1 should have all the info on you and that is what you are asking for with the SAR. here is a link, a letter of non compliance is your next step http://www.legalbeagles.info/forums/showthread.php?t=70

If in the meantime you hear from Lowells then maybe you should send them the account in dispute letter.
Hope this helps Enaid x

[Shira]

Re: Bart V Capital One

Received a reply offering £400 as a gesture of goodwill instead of £1,369, after LBA letter, can anyone check the POC please just to make sure it’s right before post it.

Thanks for your help
Shira

Brief Details of Claim
Money claim for the return of penalty charges levied to the Claimants Credit Card account by the Defendant
Claim Value:
1) Return of default charges totalling £932.00
2) Interest pursuant to s.69 County Courts Act 1984 from the date of each charge to date of issue of claim totalling £362.29

Claim subtotal £1,294.29
Court Fees £75.00
Claim Total £1,369.29
Plus interest pursuant to S.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £0.20 per day.



POC
1. This claim is brought following publication in April 2006 of the OFT document - Calculating fair default charges in credit card contracts - A statement of the OFT's position which clearly states – “[penalty charges should]:“reflect a reasonable pre-estimate of the net limited additional administrative costs which occur as a result of the specific breaches of contract and which can be identified with reasonable precision”

2. The Claimant operated the account number XXXXXXXX ("the Account") with the Defendant since November 2002
charges levied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms and conditions of the contract between itself and the Claimant. There was no negotiation on these terms.

4. A detailed schedule of charges levied is enclosed with this claim.

5. The claimant contends that the Defendants charges are a disproportionate penalty, as they do not
Reflect a true representation of actual loss and therefore are unenforceable in common law and statute.

6. During the period in which the Account operated the Defendant levied disproportionate charges to the Account(s) in respect of breaches of contract by the Claimant and also applied interest on the

7. The following Common law Principles (Penalty charges are irrecoverable at common law). The precedents for this were:
a) Dunlop Pneumatic v New Garage [1915] AC 79. Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges. They are; 1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach. 2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

b)Murray v. Leisure play [2005] EWCA Civ 963 “English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

c) CMC Group Plc And Others V Zhang [2006] EWCA Civ 408. “'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

8. Furthermore , or in the alternative , penalty charges are also contrary to: The Unfair Terms in Consumer Contracts Regulation 1999 No 2083 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation .Further , or in the alternative , if the defendant states that there was no breach of contract and that the charges are for a service, then it is the Claimants belief that the defendants have attempted to restructure accounts in order to present events of default spuriously as additional services. However The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just theirmechanism. For example, a charge for 'agreeing to' or'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.

9. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £932.00 and any interest charged thereon;

b) Any Court costs incurred by the claimant;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of charges of, from the date of each charges to the date of issue of claim totalling £362.29 and interest at the same rate up to the date of judgement or settlement at an equivalent daily rate of £0.20 per day.

[WendyB]

Re: Bart V Capital One

There seems to be a bit missing from the end of point 6. Other than that it looks ok to me but I am not an expert. Best wait for someone more experienced than me to have a look.

[Shira]

Re: Bart V Capital One

Thanks for taking the time to check out my POC, Yes you are right, there are missing bits about the T&C which he didn’t have the copy of it. I have re-do it again to make sure nothing is missing.
Thanks

POC
1. This claim is brought following publication in April 2006 of the OFT document - Calculating fair default charges in credit card contracts - A statement of the OFT's position which clearly states – “[penalty charges should]:“reflect a reasonable pre-estimate of the net limited additional administrative costs which occur as a result of the specific breaches of contract and which can be identified with reasonable precision”

2. The Claimant operated the account number XXXXX ("the Account") with the Defendant since November 2002

3. During the period in which the Accountoperated the Defendant levied disproportionate charges to the Account in respect of breaches of contract by the Claimant and also applied interest on the charges levied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms and conditions of the contract between itself and the Claimant. There was no negotiation on these terms.

4. The Claimant has requested on [Insert date of T&C Letters] a copy of the terms and conditions that related to the account at the time of signing his/her contract, along with any subsequent amendments to these terms and conditions issued from time to time and any current terms and conditions applicable at the time of submitting this case to the courts. (to be removed)

5. On [Insert date of T&C Letters]. The claimant also requested a detailed report of which clause, in the terms and conditions, each charge had been applied against, but to date the defendant has have failed to do so. (Delete this paragraph if they have supplied them) (to be removed)

6. [if you have received the terms]The terms and conditions of the account contract explicitly describe the charges as to be levied in instances of breaching those terms and conditions. This is highlighted on Appendix xxx and states: ‘Charges:If your account remains out of order future transactions may be declined, your credit limit may be reduced and the following charges may be applied to your account if you continue to break the conditions of your agreement’ [amend to suit wording from your T&C's](to be removed)

7. A detailed schedule of charges levied is enclosed with this claim.

8. Its the claimant’s contention that the defendants charges are a disproportionate penalty, do not reflect a true representation of actual loss and therefore are unenforceable in common law and statute.

9. The claimant quotes the following Common law Principles (Penalty charges are irrecoverable at common law). The precedents for this were:
a) Dunlop Pneumatic v New Garage [1915] AC 79. Lord Dunedin set out some tests that are considered even in modern cases when the court is asked to rule on penalty charges. They are; 1) If it is "extravagant and unconscionable" i.e. that the cost incurred by the business because of the breach is lower than what the consumer is being expected to pay because of the breach. 2) It is also a penalty where the consumer is to pay a larger sum due to failure to pay a smaller sum. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

b)Murray v. Leisure play [2005] EWCA Civ 963 “English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable”

c) CMC Group Plc And Others V Zhang [2006] EWCA Civ 408. “'Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

10. Furthermore , or in the alternative , penalty charges are also contrary to: The Unfair Terms in Consumer Contracts Regulation 1999 No 2083 SCHEDULE 2 Indicative and Non-Exhaustive List of terms which may be regarded as unfair (e) Requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation .Further , or in the alternative , if the defendant states that there was no breach of contract and that the charges are for a service, then it is the Claimants belief that the defendants have attempted to restructure accounts in order to present events of default spuriously as additional services. However The Unfair Terms in Consumer Contracts Regulations 1999, are concerned with the intention and effects of terms, not just their mechanism. For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.


11. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £932.00 and any interest charged thereon;

b) Any Court costs incurred by the claimant;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum, from the date of each charge as detailed on the attached schedule of from the date of each charges tothe date of issue of the claimtotalling £362.29 and also interest at the same rate up to the date of judgment or settlement at a daily rate of £0.20 per day

[Shira]

Re: Bart V Capital One

Sorry to be a nuisance but would someone please check it over for me & advice before posting it off to Court,

Thanks very much

[Shira]

Re: Bart V Capital One settled

SETTLED

[enaid]

Re: Bart V Capital One settled

SETTLED

Satisfactorily?

[Shira]

Re: Bart V Capital One

Yes settle in full payment :tinysmile_twink_t2: