Lurker1 v Capital One

[lurker1]

The first stage of my mission against Capital One starts tomorrow morning as I am up in court at a hearing to have the CCJ they got against me last year set aside due to the whole amount being made up of penalty charges.

 

Anyone else been through this yet or have have any advice - I am thinking my chances are probably 50-50 on having it set aside, I think if Capital One turn up things will probably be in their favour as I cant prove the penalty charges are unlawful, win or lose I will start the action to reclaim the penalty charges on Friday if things go against me tomorrow I will go for the default and the CCJ to be removed as well.

[lurker1]

The first stage of my mission against Capital One starts tomorrow morning as I am up in court at a hearing to have the CCJ they got against me last year set aside due to the whole amount being made up of penalty charges.

 

Anyone else been through this yet or have have any advice - I am thinking my chances are probably 50-50 on having it set aside, I think if Capital One turn up things will probably be in their favour as I cant prove the penalty charges are unlawful, win or lose I will start the action to reclaim the penalty charges on Friday if things go against me tomorrow I will go for the default and the CCJ to be removed as well.

[lurker1]

Well went to the court today - Capital One didnt turn up, but as it turns out they didnt need to.

 

As I sat down the first thing the judge told me was that I had no valid reason to set aside the CCJ, he said the fact that new information coming to light from the OFT stating that the credit card charges are unlawful wasnt a valid reason, he went on to say he sympathied with me and said the banks have known that their charges are illegal for years and that I should sue them for my money as they will definately settle before it got to court but the only way I could remove the CCJ was to go to a circuit Judge which would cost me a fortune, I tried to argue my case but he wouldnt have any of it he, I asked if I could include the CCJ removal in my action to reclaim the money from Capital One and he said no it isnt possible.

 

I find it unbelivable that he believes they have unlawfully taken money from me and got a Judgement against me for that money yet wont remove it - yet when I got a Judgement against Abbey they got it set aside by default almost by saying they had sent in a defence when they hadnt - they didnt even turn up with the defenece at the set aside hearing, plus you hear on here of other cases where the bank can just say they forgot about the case and get the Judgement set aside.

 

I am so P****d off right now, a letter is being drafted for the Prime Ministers office, any ideas if I can appeal to anyone - maybe the european court of human justice??

 

Moderated .. please can you not post words that may be seen as libelous , this is for the protection of the site

[lurker1]

Thanks Karnevil, really apreciate your advice, I will search for allixya posts.

[lurker1]

Just read allixya thread, and I am even more angry, I went very prepared, had a binder with all the details even statements, lists of cases where Capital one had settled before court, the press release from the OFT about the charges being unlawful but the Judge wouldnt even let me open my binder, I tried to explain that other people had had their Judgement set aside for the same reason, but he refused to listen and just said he was sorry but new information coming to light from the OFT wasnt reason to set the Judgment aside - he even stated that he believed that Capital One know the charges are unlawful and have known for many years - (His words) and that I should sue they for the money back, that is all good and well but stil leaves me with a Judgement for the next 6 years.

 

Arhhhhhhhh so mad!!!

[bram stoker]

new information coming to light from the OFT wasnt reason to set the Judgment aside

 

I think the judge was trying to tell you something here. I think he wants you to find another reason.

 

Have you claimed for your charges yet?

 

I'm not sure what reason he's after exactly, but I think other more legally minded than me will, and hopefully help guide you to get that reason in front of the judge.

 

Sorry I can't help more.

[Seminole]

Did you submit a defence when the bank claimed against you or did you allow judgement to be entered by default?

[lurker1]

I didnt enter any defence or attend the hearing, they got Judgement by default.

[Seminole]

OK, well I'm really puzzled.

 

It's quite difficult to get a set aside if you defended the original claim. If you didn't then all you should need to do is to demonstrate that you have a reasonable argument that the judgement shouldn't have been awarded if you had submitted a defence.

 

I'm not sure where you can go from here. I would think about claiming the charges back as a first step and then either as part of that process or subsequently applying for the judgement to be set aside. I know the judge said you couldn't do that but I would make a normal claim for a refund of charges and then submit an application (N244) for a set aside after the other side has filed their defence. I can't see how a judge could refuse to deal with it. You may find that the bank agree to the set aside when they settle anyway.

[lurker1]

Thanks for the advice seminole

I went along thinking I had a 50-50 chance, but the fact he wouldnt consider any argument and yet agreed the charges where unlawful just makes me mad - he basically agreed that I have a Judgement against me for money that was unlawfully charged and yet refused to enter into a discussion about removing it.

 

I think I need to look into taking them to court for the charges and remove the default and see if I can make them remove the CCJ all in the same action.

I can just see the agreeing to repay the money but not remove the default and Judgement then get saddled with another crap Judge who throws the case out as they have offered a refund.

[lurker1]

He probably wouldnt remove the CCJ even then - so mad Im clearing out the garage - seriously

[lurker1]

Think I am going to be in a Victor Meldrow mood all day!!

[lurker1]

Just like to say thank you to everyone for their support and advice you people are invaluable and give all the little people a chance against these beasts.

 

Going to read up on what my options are, see if I can get Capital One to agree to set aside the CCJ - if that is at all possible now or see if I can apply for a different Judge to view the set aside hearing etc.

 

Thanks again people!!

[BankFodder]

I think that you should appeal. I would like to see your setasid application.

You will have to move quickly if you want to do this.

Also, you shoujld sit down now and make as close a note as you can of whatever the judge said. DO IT NOW!

 

Contact the court and ask for notes or transcript.

 

Be aware that if you lose the appeal you may suffer some limited costs.

 

Did cap one default you as well or was it just the CCJ?

[lurker1]

Hi Bankfodder

Many thanks for the advice, I will do as you advise and make some notes on what was said.

I have got a default against me from Cap one as well as the CCJ, how do I go about getting the transcript do I just phone up the court and request it, also what do I do to appeal - write a letter stating my case or is their a form I need to fill in and enter.

Also what sort of cost scale would you guess I could be liable - not holding you to anything just if you have an idea that would be great.

 

Thanks again, all the advice and help is very much appreciated.

[dayglo]

oh no! not another case of doing lots of proper preparation for a case and then not being able to open the folder... I have my case pending against vodafone and I'm putting heart and soul into getting it right and preparing properly now.... I can see it coming a mile off......

 

I hope any appeal is a success. The best of luck to you.

[lurker1]

Hi Dayglo

 

Good luck with your case, I think it could just come down to the Judge at the end of the day, hope you have more success with your case, I am awaiting some books from amazon to study up some more, then I will be hitting cap one for everything I can and wont be giving up on the CCJ issue, I was actually off work with stress at the time of the CCJ and taking prozac from the doctors so will look at that side of things as well as a doctors note will show how this was all affecting me.

[dayglo]

I think 'the judge' is the most critical piece of the jigsaw. Allyxia did really well and got a CCJ removed when the charges only accounted for half the value of it. It sounded like she had a judge that was prepared to listen with an open mind and she won.

 

Others, yourself included, end up with someone who, on the face of it, mas a pre-conceived idea about an idividual taking on a large financial institution. Game over before you walk in.

[lurker1]

Totally agree, but hopefully if I can appeal and get a different Judge I may then be able to put across my case.

[dayglo]

aye. good luck again.

[lurker1]

Quick update, have spoken to the court and they are sending me two forms, one to apply for the transcript and the other to apply for the appeal.

[lurker1]

Ok finally got to the bottom of things and I think I screwed things up myself.

 

In part A of my application in section (3) (because) I put:

 

The reason being that new evidence has come to light that the charges applied making up all of this debt were in fact unlawful at common law, statute and recent consumer regulations.

 

When I think I should have put:

 

I agreed with the full amount of the judgement at the time, but now only agree with part of the amount.

 

Now I have until tomorrow to appeal - can I now appeal and change my reason or should I make another 'New' application to set-aside or am I just stuffed??

 

Please help people!!

[BankFodder]

To obtain a setaside you must convince the judge that that you did not receive notice of the claim and also that if you are given an opportunity to defend that you have a good chance of success.

 

 

The most important thing is the latter point.

 

For a successful appeal you will also have to challenge the judge's decision and show that it was flawed. So:-

 

You should argue that it is in the interests of the overriding objective that you should be given the opportunity to defend and that your appeal is brought on the basis that the judge erred in not considering the Overridiing Objective.

It is clear from his own words (quote the words) that he appreciated the injustice of his decision and that he was bound by CPR1 to allow the setaside application. - This actually is your main ground of appeal and must be setout first.

 

You will have to say that although you did receive the claim form (presumably this is correct), you did not defend it as you were mislead by the defendants own representation that their charges equalled their administrative costs and that they were lawful.

You must say that you consider that the defendants owed you a duty of care as your fiduciary and that they should not be allowed to benefit from their misstatement.

 

Secondly you must argue that in the light of new public understanding of the status of penalty charges which has been brought about by websites, the media and the OFT report, you now wish to have an opportunity to defend the claim and that you believe that you have a very good chance of success.

 

 

I'd like to say to others who read all of this that this setaside was applied for and entered into without adequate preparation and that it could have easliy have been won otherwise.

 

The reading should have been done before and not after the event.

Frankly, it is quite an impressive trick to lose a setaside application on an issue like this when the other side doesn't even turn up. Don't give up your day job.

[ukaviator]

Hello Lurker1.

 

Just a few questions if i may?..

 

Did you send the information Bankfodder asked for recently?

 

Did you do any homework at all on your case?. The reason i ask is on post 2 you say you can't prove the penalty charges are unlawful. If you did your work you would have seen that they are indeed Unlawful.

 

The other thing is you need to try and calm down and stay off the Prozac, it will impair your judgement, which by the looks of things has happened here.

 

How much have you lost so far in fees to the courts?.. and is your claim a big one?

 

I would recommend that you start a fresh application and get some assistance in how to present your case to court. I claimed £1313 from Capital one with reletive ease. I had a snotty letter afterwards, but i won and they did'nt file a defence.

 

Please be careful in the future, we are here to help. Don't take offence about my comment earlier, but mistakes are costly. If you do decide to start again, post here and we can assist. At the end of the day it is your decision.

 

Good luck

 

Uk...

[lurker1]

Thanks Bankfodder - I sit in shame, I honestly did read up loads and thought I really went well prepared with a folder full of stuff - opps!!