Help 48 xxx versus Capital One

[banker_rhymes_with]

Its either CCA- unenforceable, or claim the charges back. Not both.

 

I think it can be both. The issue boils down to two main issues:

 

(1) Did they ever set up the Agreement correctly.

 

(2) Have they added Unlawful Charges.

 

The issue of admitting a Debt should be removed from the equation. The Statements all prove that money went to and from Help48xxx, so that is not doubted, but does not affect the issue.

 

This was an Agreement that was Regulated by the Consumer Credit Act 1974 (CCA-1974).

 

There is ample and binding Case Law that confirms that any surplus of funds paid to the Consumer have to be regarded as a Gift from the Original Creditor (OC) if the OC neglected to set up a properly executed Regulated Credit Agreement (and complied with any Cancellation Rights requirements and Copy Agreement despatch timescales etc).

 

In effect, they are required to get the paperwork right at the very outset. That is mainly all they have to get right. After that, it's just Account Management and sending Statements. Then lawful Default/Termination and possible Enforcement if it all goes pear shaped for them.

 

The OC, we have to assume, was a large and sophisticated financial institution, with an Army of Lawyers whose sole task was to get the paperwork right. The CCA-1974 requires nothing less.

 

They were holding all the Aces when Help48xxx first went near them. It was their Agreement and it was on their Terms. But the Agreement was nevertheless Regulated by the CCA-1974.

 

Now that it has gone sideways for them, the Agreement is absolutely vital for them. If their Army of Lawyers messed up, then there may not be an Agreement that can Enforce the Debt. If they can't Enforce because there is no Agreement worth squat to Enforce, then what we have is a Gift, not a Debt.

 

No Agreement = Gift to Help48xxx.

 

No Agreement = No Right to Default.

 

No Agreement = No Agreement to Terminate.

 

No Agreement = Nothing to Enforce.

 

No Agreement = No Consent to Share Data.

 

Now, if that is the case, then what we have are records of Gifts flowing to Help48xxx and Payments back from Help48xxx to the OC.

 

In my opinion, if Help48xxx has paid back more than the Gifts, then Help48xxx should ask for the difference back.

 

This does not mean asking for the Interest back, as the Interest is of no interest (forgive the pun), as the OC never had a right to charge it anyway.

 

What Help48xxx is asking for back is the excess of Payments over the Gift of funds.

 

Unlawful Charges can be combined with the above request, depending on whether these are greater or lesser than the excess of Payments made by Help48xxx to the OC.

 

I must stress that none of this has been tried yet, but if you follow my reasoning, I think it is quite valid.

 

However, if Help48xxx wanted to go ahead and claim for the Unlawful Charges, that too should be fine. All Help48xxx is doing is asking for Unlawful Charges back based on the Account Statements.

 

This request does not admit any Debt.

 

The argument about the Agreement can carry on, and if they cannot produce one, then Help48xxx can either walk away safe in the knowledge that the OC were silly to make a Gift, or Help48xxx can ask for any surplus back that went above the Refund of Unlawful Charges.

 

The bottom line has to be, if they failed to create a binding Agreement at the very outset, one that completely satisfied the requirements of the CCA-1974, then there can be no Debt. There is nothing to Enforce.

 

I appreciate they will sell this on to a DCA, and there will be lots of moaning and bitching from the OC. But it is entirely their own fault.

 

OK...if they produce a binding Agreement, and can bring the Original Copy of that to Court. Then there is a Debt and it's to be expected that they will seek to Enforce that. In that case, Help48xxx has a battle on, and the tactic has to be either re-claim Charges now, or hold that back as a Counter-Claim should the OC decide to go to Court to Enforce.

 

As always, this is my own interpretation. Please discuss rather than act on anything I have said.

 

Cheers,

BRW

[banker_rhymes_with]

Hello WendyB!

 

And that depends on someone having the bottle (and the funds) to take it all the way.

 

It may not be such a hard one to fight and argue, as it would not be asking for Interest back, which is the main thing the bankers would fly off the handle about.

 

All that is being asked for is the excess of Payments over Spending on the Unenforceable non-Account.

 

Just to quote one of my own Cards as an example, the bankers say I owe them around 20k. However, over the 10 or so Years that I have had the Card, I have spent in total around 72k. But I have also re-paid them over 78k.

 

So, I've Paid around 5k more than I have ever Spent (just making it simple by saying 5k, the actual is between 5k and 6k).

 

The sum Total of all Interest and all Charges comes to around 25k.

 

Take the 5k I have over-paid off that and we get the 20k they say I now owe.

 

However, what if, as seems to be the case, there is no valid Agreement? The bankers messed up. They failed to do the one thing they needed to get right. The one thing they had an Army of Lawyers to help them get right.

 

So, now I have a banker wanting 20k, who is potentially up a creek and without a paddle. I can't tell, as they seem reluctant to show me the Agreement.

 

I could walk away and just call it a day. But they have not ceased in their Telephone and Letter Writing Harassment, despite their abject failure to produce the very document I have asked for to prove I am required to Pay them the 20k of Charges that they say I owe.

 

Some of those Charges are Unlawful, and much of the Interest is Penalty Interest, far above anything that can be considered reasonable. Although I regret it is within the Law. 35% is not, sadly, a crime, although it ought to be.

 

If you see where I am heading with this, morals do not come into it. I'm not seeking to get out of paying anything other than Unenforceable Charges, Unlawful Charges, Unenforceable Interest and Unenforceable Penalty Interest.

 

But my case is really quite simple. Just give me back the excess I paid over what I spent, and all the rest is their problem.

 

If, as I suspect, Help48xxx is in a similar position, then she may find the whole argument boils down to Payments v Spending. How to play that then depends on the Agreement, or lack of it, and if Spending is higher than Payments or vice versa.

 

I fear this is very simplistic, but sometimes cutting through all of the banking hot air and bumf can bring some clarity back into things.

 

I do fully agree that this will not go away unless something is Paid, or unless something is Claimed to wipe out what they say is owed.

 

One option is for Help48xxx to just resign herself to maybe 6 Years of hassle, and after that it's Statute Barred anyway, end of story. But in that time, CapOne and any DCAs following on, may litter Help48xxx's Credit (Debt) Files with unlawful Defaults and malicious adverse Data, and thus cause on-going problems with day to day finance and general banking.

 

The only defence there is to keep writing Letters and Complaints, and build up any Harassment evidence for Claims or Counter-Claims.

 

This is the sad fact, the bankers are not nice people, and you soon realise that when you cross them. They get very hissy, very quickly.

 

It takes mind-numbing stupidity to be unable to make money in a Business that can create money. 97% of all money in circulation within the UK has been created by Building Societies and bankers, only 3% was created by the Bank of England as Coins and Notes.

 

That's 97% number-money...created by the same people who are now moaning about how difficult life is for them in this Financial Mess of their own making.

 

Cheers,

BRW