Capital One Default

[biondani]

I am wondering if anyone could help with steps to remove a default that has been logged against me by Capital One (Credit Card). The default only appears on my Experian. Callcredit and Equifax have no record of it.

My argument with Capital One is that I have never received a notice of intent to log a default. They have said that one was sent to me on 24th April 2007 and a default notice on 19th May 2007. I have asked for copies of these under the Consumer Credit Act and under a SAR and they are refusing to send me a copy saying they don't have to as the account is closed even though the SAR shows the account is still open with a nil balance. I did request the account be closed after I paid off the outstanding balance on 27th May 2007 so the account should be closed even though their internal screenshots still say the account is open.

I was making minimum payments by direct debit and these were going through every month without issue but the default was raised for overlimit amounts. Most of which would have been Capital One charges. In my SAR they have not given any statements so I can't confirm this.

They are also refusing to provide any call transcripts even though they do hold these and are therefore, I believe, in breach of the data protection act. They provided a template letter of the notice of intent to log a default and said that they are not legally obliged to hold a copy of the notice so can't provide it. Surely they must provide a copy as evidence as they are currently holding me in default illegaly in my opinion.

Capital One are now saying that this is their final response on the matter and I must refer to FOS in order to take this further. Do I threaten legal action with regard to the default or do I write to Experian asking them to remove the default as I am contesting the legality of it due to Captial Ones complete disregard for the law?

Ian

[Celestine]

Re: Capital One Default

Hi Ian

Firstly, they do have to comply with your SAR even if the account is closed.

This default sounds similar to one of the defaults I've just had removed from a Lloyds Credit card.

Have a read here:

Legal Beagles Consumer Forum

Any Q's just ask

[biondani]

Re: Capital One Default

biondani, you do not have permission to access this page. This could be due to one of several reasons:

1. Your user account may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?

Read more at: Legal Beagles Consumer Forum

When I try and access that link

Ian

[biondani]

Re: Capital One Default

Seeing as the default was on the "illegal" overlimit charges which I am going to try and claim back now anyhow can it even be legal to start with?

They did reply with some details in a SAR but it had no statement information, no copies of the default letter or notice of intent or any other letter they told me they had sent around the time. How can it be complete in this case? They are also refusing to give me telephone transcripts saying they have no obligation to do so.

It is sounding like I need to start with legal action against them to remove the defaults and to provide the information I have asked for. Any suggestions on how to start this and any recommendations as to what I need to do?

Ian

[Celestine]

Re: Capital One Default

Ahhh sorry Ian, that thread got moved to VIP whilst we were working on it....didn't want lloyds peeking!

I'll move it temporarily back to general access so you can take a look.

Lloyds Defaults Removed!! - Legal Beagles Consumer Forum

[biondani]

Re: Capital One Default

Looking through that thread it looks like I need to send a prelim to get the wheels moving.

Ian

[Celestine]

Re: Capital One Default

Yes, definitely. Default caused solely by unlawful charges and non compliance with DPA.

[teaboy2]

Re: Capital One Default

and a default notice on 19th May 2007 - I paid off the outstanding balance on 27th May 2007 so the account should be closed

Give the above that you stated in the Original post then it appears you remedied the default well within the 14 day statutory days, therefore before the last date of remedy on the default notice. As such the default should according to law be deemed as not having occured.

Consumer Credit Act 1974

88 Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—


(a)the nature of the alleged breach;


(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;


(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

89 Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

In this case as you paid the full amount you are covered by section 88 1 (c) and therefore the breach (default) should have been treated as not having occured as per section 89 of the act.

Therefore the default on your credit file would appear to be inaccurate as it never occured since you remedied it on before the before date on the notice, and therefore the default would appear to be libellous. As a result it will have also caused you a financial detriment to the effect it would have effected your credit rating and may well have resulted in you being refused for credit.

So 3 claims against them, DPA, Libel and Financial Detriment though you would have to prove you had suffered financial deteriment i.e. refused credit as a result of the default.

[biondani]

Re: Capital One Default

Let me check the dates when I get home. I am sure they are correct but capital one did add 3 days to the payment date as they said it takes three days to process payments

[teaboy2]

Re: Capital One Default

capital one did add 3 days to the payment date as they said it takes three days to process payments

Thats irrelevent, the payment date is the date the money is paid by you not when its received by them.

[biondani]

Re: Capital One Default

I have the day I called in my SAR so will have to check. The template letter they sent only gave 10 days to pay before action was taken which seems very low as it normally tales 10 days for any letter they send to arrive anyhow. When I send my preliminary and lba I will use their head office address rather than exec team as any delays going to exec office will be in my favour
------------------------------- merged -------------------------------
I won't be home until late Tuesday so will check then

[biondani]

Re: Capital One Default

Emailed the following to Capital One late last night and had a reply today to say they are investigating. This is contrary to the letter I got stating that their final response is basically get stuffed.

I have received your reply regarding PPI on card number XXXX XXXX XXXX XXXX where you have stated that I selected PPI on my internet application. I do not believe this to be the case as I had no need for PPI and therefore would not have selected this option. I would like a copy of the data that was supposedly entered as part of my internet application as you did not provide this within the SAR that I requested from you. You have stated that I said that I was 28 years of age and listed my job and salary. This is information that you held on me within your systems so why was a copy not provided when I requested my SAR when you are LEGALLY obliged to provide ALL information that you hold on me? Yet another breach of the Data Protection Act (DPA) by Capital One along with the refusal to provide copies of default letters, transcripts of telephone calls and full credit agreements.

Yet again Capital One have neglected their legal obligations and I will be preparing a letter before action on these points due to the complete disregard for consumer law unless Capital One address the issues with immediate effect.

You state that you served a default notice on 19th May 2007 and I paid the debt on 27th May 2007, this is within the 14 statutory days and therefore by law the default deemed as not having occurred.

Consumer Credit Act 1974

88 Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—


(a)the nature of the alleged breach;


(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;


(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

89 Compliance with default notice.

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

I am covered under 88.1(c) and therefore under section 89 the default should have been removed. Therefore the default on my credit file would appear to be inaccurate as it never occurred since I remedied it on before the before date on the notice (which I never received anyhow), and therefore the default is therefore libellous. As a result it has also caused me a financial detriment to the effect it has affected my credit rating and has resulted in me being refused for credit on many occasions.

At the moment I have 3 claims against you which if not resolved within the next 10 working days will lead to me raising the paperwork to take Capital One to county court. The three claims being DPA (of which yet more proof has been given in the letter dated 28th July 2011 as this contains personal information held about me that was not disclosed under the SAR), Libel and Financial Detriment.


Ian Biondani

[biondani]

Re: Capital One Default

Had a reply stating they sent a notice of default on 19th April 2007, a statement of default on 24th May 2007 and I paid them on 27th May 2007. Even though I had phoned and made an arrangement at the beginning of May they were not prepared to remove the default. So off to FOS it goes.

Ian

[The Debt Star]

Re: Capital One Default

The FOS should sort this out mate.

They forced HSBC to remove a default from my OH's credit files last year, similar circumstances.

[biondani]

Re: Capital One Default

Lets hope so. Sent to FOS today along with the default notification template letter which only gives 10 days to pay. I'm sure the minimum is 28 days under the CCA.

Ian