Davey77 vs Capital One *** WON ***

[banker_rhymes_with]

Hello Davey77!

 

This is a repeat of my Post over on your Main Thread, but that went up before I noticed you had started this Thread! Hope it's of some use.

 

This is a Witness Statement from someone who doesn't actually have direct knowledge of handling the Agreement itself.

 

...my own knowledge based on information supplied to me or based on enquiries I have made.

 

In other words, this Witness has started off their Witness Statement by saying they base what follows on information that others have supplied to them, or that has been advised to them following their enquiries.

 

This is a Witness Statement from someone who wasn't a Witness to the events.

 

They then go on to write about what would've been sent to you, not from their own first hand experience, but from what others have told them.

 

Who are these others, and why can't they make their own Witness Statements?

 

When exactly did Wendy Starr start working for Capital One? Was she working for them in 2003, and what involvement would she have had in the sending out and in the receipt of the alleged Application Forms?

 

Did she misplace the Agreement, or was it one of the people who told her about what would've been sent to you who lost it?

 

In the Witness Statement:

 

5. The application pack would have contained the credit agreement in the format attached at Exhibit WS1 and would have consisted of:

 

How does she know this? Who told her? Can that person be called as a Witness?

 

5.I.ii a separate declaration under the heading "Credit Agreement Regulated by the Consumer Credit Act 1974" and stating that the applicant (the Claimant) had read and agreed to be bound by the full terms and conditions of the credit card agreement with Capital One. On the reverse of this document underneath the heading "Consumer Credit Agreement regulated by the Consumer Credit Act 1974. These terms are taken from Clauses 8, 10 and 23 of the Terms and Conditions that you sign with us" there would also have been an extract of the key terms of the credit agreement including the prescribed terms for the purposes of Consumer Credit (Agreements) Regulations 1983; and

 

Again, this is all guesswork, based on what others have told her. It is not something she appears to have had any direct involvement with by the sound of things. Would a Legal Specialist be involved with licking Stamps to send out Application Forms, and would they get involved with opening envelopes when Application Forms came back?

 

So how does she know what was, or was not sent to you?

 

In any event, the Heading she points out is not, actually, correct if they want the alleged Application Form that would've been sent to you to become an alleged Agreement:

 

See: Consumer Credit Act (1974) and related Regulations

 

This is not headed correctly if they want this Application Form to become a Regulated Credit Card Agreement...they've omitted the word Card!

 

SI 1983/1553 (see link above) says [1(d) applies to your Card]:

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--

 

"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.

 

She then goes on to say that they would've sent you another Document, and that when combined with the Application Form, would've formed the original credit Agreement. Well, the other Document can contain non-vital Terms, but it cannot contain the Prescribed Terms.

 

The rest of the Witness Statement falls apart if she has not proved what was actually sent to you.

 

The rest is just trying to explain how it all hangs together after you gloss over the fact that she is no Witness to the events. But the rest only works if you take a leap of faith and accept that she knows what she is talking about...even though she probably wasn't there at the time, had no involvement in what was sent to you, and is basing all of what she claims on what others may or may not have told her.

 

I think you need to try and get hold of PT2537 or Surfaceagentx20, and see what they have to say.

 

I hope this helps.

 

Cheers,

BRW

Edited December 3, 2008 by banker_rhymes_with
Typo

[banker_rhymes_with]

Hello Davey77!

 

I agree with CB, this should really be in the Legal Forum, given the looming Court deadline.

 

That Witness Statement needs to be shot down in flames.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Just a quick note to make sure you are aware that the Prescribed Terms must be Contained within the four corners of the Agreement, they cannot be embodied within a 2x Document Agreement.

 

That means they must be directly contained with your Signature, they cannot be found within a 2nd Document.

 

The 2nd Document can include non-essential Terms that would form part of the overall Agreement, but those Terms must not include the key Prescribed Terms.

 

The Consumer Credit Act 1974

 

s61(1)(b) is concerned with those non-essential Terms. Failure to comply with this is not fatal.

 

s61(1)(a) is concerned with the Prescribed Terms. Failure to comply with this is fatal (at least for written Agreements made before the Consumer Credit Act 2006).

 

Where the so called Witness Statement bleats on about a 2nd Document, that can be ignored when talking about the Prescribed Terms.

 

The area to home in on is where the so called Witness Statement tries to say what would've been on the back of the Copy alleged Agreement. That's the part they are trying to nail by smoke and mirrors.

 

You need to read up on:

 

CPR Practice Direction 16 7.3 as that covers the requirement to produce the Original Agreement in Court if the alleged Agreement is based on a Written Document (as yours is).

 

The Civil Evidence Act 1995 as that covers Hearsay evidence, which is what their Copy Agreement is, as is any other Copy Document that they want to produce in Court. They need to notify the Court when they wish to produce Hearsay evidence, and they also need to produce hard evidence to back up the copies if they want them to be considered. Even then, they should carry less weight as evidence, as they are not the real thing.

 

The Real Thing = Evidence

 

This needs nothing else to be taken 100% seriously as fact.

 

A Copy = Hearsay evidence

 

This needs supporting Evidence to increase its weighting, such as detailed notes and real Witness Statements from people who were there.

 

Ideally, they would need actual Witness Statements from the people who handled your Document, i.e. the ones who sent it out to you, the ones who booked it back in, the ones who Scanned it, the ones who elected to Destroy a live Statutory Document, the ones who looked after the Scan, and the ones who Printed off Copies from that Scan. All need to be Signed and Dated.

 

A Legal Assistant writing an essay saying what she thinks was the case is nowhere near what is needed to support their position. This Witness needs to be called in for some serious cross-examination, starting with asking them when they started working for Capital One...were they even there in 2003 and, if so, in which Department did they work?

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

5. The Claimant applied for his credit card by responding to a direct mailing application pack which had been sent to him by the Defendant. The application pack would have contained the credit agreement in the format attached at Exhibit “WS1” and would have consisted of:

 

What does Exhibit WS1 comprise of? More copies, or have they included a blank Original example of what they would've sent you?

 

This doesn't mean it's an example of what they did send, because it's entirely possible they realised their mistake, and had a new batch of blank Application Forms Printed that had Terms added to the Rear. That would be a printing job worth doing (for them) if it can mean hood winking Judges into letting them make Copies of otherwise Unenforceable Application Forms into Enforceable Copy Agreements!

 

I trust bankers about as far as I can throw one of them, so would never rule anything out.

 

Unless this Starr character was involved in this from day one, how can she possibly know all that she claims...Wintess Statement creation via Crystal Ball perhaps?

 

If you can elaborate on what WS1 looks like, that may help to get to bottom of what they are bringing along to try and big up the lack of an Original Signed Agreement.

 

I think you should research what a proper Document Management System should entail, and then get Starr to explain to the Court how the one they haven't got at Capital One works by comparison. She can also explain how theirs loses Original Documents for example.

 

Cheers,

BRW

Edited December 3, 2008 by banker_rhymes_with
Typo Word Mangle

[banker_rhymes_with]

Hello Davey77!

 

This may help you to get a good discussion going on the so called Witness Statement!

 

I've pulled the Text for you, so that others can now cut and paste to add any comments to help you pull that Witness Statement apart:

 

Made on behalf of the Defendant

Witness: Wendy StarrShip Enterprise

1st Statement of Witness

Exhibits: 3

 

Dated: 27 November 2008

 

IN THE TORQUAY AND NEWTON ABBOT COUNTY COURT

 

CLAIM NO:

 

BETWEEN:

Davey77

Claimant

 

-and-

 

CAPITAL ONE BANK (EUROPE) PLC

Defendant

 

WITNESS STATEMENT OF WENDY STARRSHIP ENTERPRISE

 

I, Wendy StarrShip Enterprise of Capital One Bank (Europe) plc. Trent House, Station Street, Nottingham, NG2 3HX, will say as follows:

 

1. The facts and matters referred to in this statement are, unless otherwise indicated, of my own knowledge based on information supplied to me or based on enquiries I have made. The same is true to the best of my information, knowledge and belief. Where the facts or the matters referred to in this statement are not within my own knowledge, the source of the information is stated. [BRW Translation: I'm making this up as I go along, and have a deep faith that you won't notice my lack of a Paddle as I head up this creek]

 

2. I make this statement in support of Capital One Bank (Europe) plc’s (“the Defendant”) defence of Mr (“the Claimant”) claim. [because they pay me to write this guff, and I don't want to be made redundant]

 

3. I work as a Legal Specialist in the Consumer Lending team within the Defendant’s Legal Department [my specialist subject is fiction]. The team comprises 6 lawyers and 5 legal specialists [and a right slippery bunch we are too].

 

4. The Claimant entered into his credit agreement for a running-account credit facility with the Defendant when he signed his credit agreement on 2 September 2003 [I mean Application Form, but if I keep saying Agreement enough times, I may get away with this]. The account was subsequently opened on 18 September 2003.

 

5. The Claimant applied for his credit card by responding to a direct mailing application pack which had been sent to him by the Defendant. The application pack would have contained the credit agreement in the format attached at Exhibit “WS1” and would have consisted of:

 

I. The signature page of the credit agreement to be signed and returned, and which in turn included:

 

i. a section headed ‘Ultra Short Application’ for the Claimant to complete his personal details:

 

ii. a separate declaration under the heading “Credit Agreement Regulated by the Consumer Credit Act 1974” [incorrect Heading] and stating that the applicant (the Claimant) had read and agreed to be bound by the full terms and conditions of the credit card agreement with Capital One. On the reverse of this document underneath the heading “Consumer Credit Agreement regulated by the Consumer Credit Act 7974 [incorrect Heading, again, and how does Mistress StarrShip know what was on the reverse?]. These terms are taken from Clauses 8, 10 and 23 of the Terms and Conditions that you sign with us”, there would also have been an extract of the key terms of the credit agreement including the prescribed terms for the purposes of Consumer Credit (Agreements) Regulations 1983; and

 

iii. a place for both the Claimant and the Defendant to sign the credit agreement on the front.

 

II. A further document headed “Credit Agreement Regulated by the Consumer Credit Act 1974 - Terms and Conditions” containing the full terms and conditions of the credit agreement. This document was referred to in the declaration on the signature page of the credit agreement (referred to at section I.ii above) which the Claimant signed. This document also formed the copy agreement for the Claimant to keep.

 

Together, the documents referred to at section I and II above and being Exhibit WS1, formed the original credit agreement [do they really, prove it].

 

6. In addition, when the Claimant received his credit token (credit card) he would also have received a further copy of the credit agreement. This copy comprised the document to which the credit card was attached and which would have contained the financial particulars relating to the credit agreement and a leaflet containing the rest of the terms of the credit agreement.

 

7. It is acknowledged that the Defendant’s Defence dated 28 May 2008 did not clearly set out that it is in fact the documents referred to at both sections I and II above (Exhibit WS1 to this Witness Statement) that together formed the Claimant’s original credit agreement (although all these documents were exhibited to the Defence). I believe that this is the reason why the Claimant has alleged that the Defendant has not provided him with a copy of his original credit agreement. However, Exhibit A of the Defence clearly states that the terms enclosed on the reverse of the signature page of the credit agreement are ‘taken from Clauses 8, 10 and 23 of the Terms and Conditions that you sign with us….‘ For further clarity I will state that it is in fact both Exhibits A and B of the Defence that form the Claimant’s original credit agreement.

 

8. It is the Defendant’s belief that the documents at Exhibit WS1 together embody [the CCA says nothing about embody] the terms of the credit agreement and contain [prove it] all the prescribed terms in accordance with the Consumer Credit (Agreements) Regulations 1983. namely: details of the credit limit (by including a statement that the creditor will set and notify the debtor of the credit limit as permitted by the regulations), rate of interest and payment terms.

 

9. The Claimant contends that the credit agreement does not contain any of the prescribed terms [no, the Application Form doesn't, there's a big difference between the two]. The Prescribed Terms for the purposes of section 61(1) (a) and 127(3) of the Consumer Credit Act 1974 (“the CCA”) are set out in Schedule 6 of the 1983 Regulations. The relevant terms for a credit card (running-account credit facility) are:

 

a. a term stating the credit limit or the manner in which it will be determined or that there is no credit limit (which can be expressed as a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor pursuant to Schedule 1 of the 1983 Regulations);

 

b. a term stating the rate of any interest on the credit to be provided under the agreement; and

 

c. a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of the number of repayments, the amount of the repayments, the frequency and timing of them, the dates of them, and the manner in which any of the above may be determined, or in any other way, and any power of the creditor to vary what is payable.

 

10. The Prescribed Terms are set out in the Claimant’s credit agreement as follows:

 

a. The required statement relating to the Claimant’s credit limit is stated in Section 10 of the credit agreement (section 2 of the extract of terms on the reverse of the signature page of the credit agreement) headed “Financial and Related Particulars” as “We will set and notify you of the credit limit(s) for your account. We may change your credit limit (s) from time to time and notify you of any change”. [she's on a roll now, as she is assuming everyone has glossed over the lack of the Original alleged Agreement]

 

b. The term relating to the rate of interest is also included at Section 10 “Financial and Related Particulars” as follows “Interest will be charged monthly for each statement period (being the period between monthly statement dates) on the average daily outstanding balance including all transactions an other charges debited to the account The current interest rates are shown below. The monthly interest rates are equal to one twelfth of the sum of the Base Rate as at the seventh day prior to the beginning of the statement period, plus for purchases and balance transfers a margin of 22.98%, The margin is 22.98% for cash withdrawals. There is also a handling fee of 1.5% on cash withdrawals (minimum £2). The Base Rate may change from time to time. At the time this agreement was prepared this formula gave interest rates shown below. For those charges in section 11 that are applied to your account, interest will be charged as if they were purchases.

 

c. The term stating how the debtor is to discharge his obligations under the agreement to make repayments is included at Section 10 as “You must make the minimum payment by the due date shown on your monthly statement. The amount of the minimum payment will be shown on your Monthly Statement and will be an amount equal to 5% of the new balance or £5.00, whichever is greater. In addition, you must immediately pay any amounts in excess of your credit limit or which are overdue and the amount of any transaction made in breach of this agreement”.

 

The applicable interest rates at the time the credit agreement was prepared are contained in the table at section 10 of the terms and conditions of the credit agreement (section 2 of the extract of terms on the reverse of the signature page of the credit agreement). The APR is also detailed within this section.

 

11. The Claimant states that the Defendant has failed to comply with the provision of Section 64 (1) of the CCA 1974 by failing to provide him with notice of his cancellation rights. The terms relating to cancellation are set out in the credit agreement as follows:

 

a. The signature page of the credit agreement (contained within Exhibit ‘WS1’) includes the statement “Your Right to Cancel” “Once you have signed this agreement you will have for a short time a right to cancel. Exact details of how and when you can do this will be sent to you by post by Capita! One.” as required by Regulation 2 (7) of the 1983 Regulations and set out in Schedule 2 Part I.

 

b. The copy of the credit agreement sent to the Claimant for him to keep (contained within Exhibit WS1) also included a box headed “Your Right To Cancel” which set out the Claimant’s right of cancellation, how and when this may be exercised and the name and address of the person to whom notice of cancellation may be given by the statement “Once you have signed you will have for a short time a right to cancel this agreement. You can do this by sending or taking a WRITTEN notice of cancellation to Capital One Bank (Europe) Plc, PO Box 5285, Nottingham, NG2 3YN...” as required by Regulation 5 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and Part II of the Schedule thereof,

 

c. In addition, the Claimant would have been provided with a further copy of the credit agreement when he received his credit card (credit token). This further copy comprised a document to which the card was attached which would have contained the prescribed terms relating to the credit agreement and a leaflet containing the rest of the terms of the credit agreement including the Claimant’s right to cancel and a Cancellation Form as required by Regulation 5 (2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and Part Ill and Part IV of the Schedule thereof

 

12. The Claimant contends that the credit agreement does not contain the required reference to charges on default as required by the 1983 Regulations Schedule 1(22). Pursuant to Schedule 1(22) the credit agreement should include an indication of any charges payable to the Defendant by the Claimant if he breaches the Agreement. This is satisfied by the statements in Section 11 of the credit agreement which contains a power to enforce charges on various incidents of default. The credit agreement also sets out the level of those charges. [she's assuming we now accept what would've been there]!

 

13. The Claimant states that the Defendant is in breach of Section 78 of the CCA by failing to provide him with a copy of his original terms and conditions in response to a request submitted under Section 78. The Defendant’s Executive Response Team received a request under section 78 of the CCA from the Claimant dated 11 April 2007 and the Defendant’s Executive Response Team responded on 1 May 2007. A copy of the Claimant’s request and the Defendant’s response is attached at Exhibit “WS2”.

 

14. The Claimant wrote to the Defendant again in a letter dated 27 April 2007 to say that he had only received a copy of his application form. On the 16 July 2007 the Defendant replied and advised that it would send the documents out again and that they would be sent separately. The correspondence is attached at Exhibit “WS3”.

 

15. It is the Defendant’s belief [you gotta have faith] that the Claimant will have received the signature page of his credit agreement together with the current terms and conditions of his credit agreement. Indeed this has been acknowledged as having been received by the Claimant in paragraph 1 of his Reply to the Defence dated 12 June 2008.

 

16. The Claimant has stated that he had received a copy of what he has referred to as his application form and in addition had received separate terms and conditions, that are entirely different from the terms and conditions that the Defendant now claims are applicable. This is not the case as originally the Claimant made a request under Section 78 of the CCA and not a copy of the original terms and conditions of his credit agreement, which is the documentation attached at Exhibit “WS1”. [eh? What does that mean?]

 

17. Under Section 78 of the CCA a creditor is obliged to provide the debtor with a “copy of the executed agreement (if any) and of any other document referred to in it” if the debtor requests this in writing and pays a £1 fee. Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 states that “every copy of an executed agreement” shall be a “true copy”. However, there may be omitted from such certain information including the signature box, signature and dale of signature and name and address of the debtor. Pursuant to Regulation 7 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 where an agreement may be unilaterally varied [how do we know it can be unilaterally varied then?], every copy of the “executed agreement” given to the debtor shall include the terms of the credit agreement as varied. As a result, in providing the Claimant with a copy of the terms of his credit agreement as varied at the date of the response to the section 78 request, the Defendant has complied with the provisions of Section 78 of the CCA [this is logic Jim, but not as we know it]

 

18. On the basis that the Defendant has provided the Claimant with a copy of both the original credit agreement that he signed in September 2003 and a copy of the terms and conditions of his credit agreement as varied at the time of the section 78 request, I consider that the Claimant has fulfilled its obligations to the Claimant and that the Claimant has no further claim against the Defendant. There remains in place an enforceable agreement between the parties. [she would say that, now wouldn't she! It's her Job after all!]

 

Statement of Truth [even though she probably wasn't there anyway, and would never have been involved in the issues, and has no idea who was there at the time either!]

 

I believe that the facts stated in this witness statement are true. [all start signing the Chorus Line...you gotta have faith!]

 

Wendy StarrShip Enterprise

Dated this 27th day of November 2008

 

Please do double check the Text, as I only proof read it quickly.

 

Call this an early Christmas present!

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Red bits for consideration!

[banker_rhymes_with]

Hello Davey77!

 

That's interesting!

 

If I understand this, the Court seem to have Struck Out your Claim, probably due to some confusion over the EX160 Fee Remission Form issue.

 

However, then Capital One have written to make a Full & Final Offer!

 

Are they trying to Pay you, or are they asking you to Pay them? As I read it above, they are trying to Pay you.

 

If so, maybe call Wendy Underpants and have her arm off before she checks their Post! Demand they Fax/Email through the Full & Final Offer Today...in view of the tight deadlines of course!

 

That Witness Statement still needs to be pulled apart, because if they don't use it this time, sure as eggs is eggs, they'll trot out something similar for another CAGGER.

 

The Threat of a Barrister is all just hot air to try and undermine your confidence. The Offer is the potentially interesting issue, that's if they really are trying to Pay you to get rid of you!

 

Maybe they've been reading your Threads and realise you won't be put off by that Witness Statement (from a Witness who wasn't actually a Witness) as they'd hoped.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

You are correct in that they are trying to offer me the money. £674.01 was my originally N1 claim amount.

 

Excellent!

 

I am averse to ringing these people. You never get the same in words as you do in writing... never have before anyways.

 

Fully agree, that was why I added that you should demand that the Full & Final Offer is confirmed in Writing via Fax/Email Today!

 

I think you can get the original Claim re-started, that's if the Court made an error on the handling of the EX160 Form.

 

So, assuming that to be the case, there should be nothing to stop you pressing ahead once that has been cleared up.

 

Perhaps point this out to Capital One (in writing), and say you will, however, accept their Full & Final Offer to save bothering the Court.

 

Draft that with the Court in mind, so that should push come to shove, you can produce that to confirm you gave them the chance to avoid wasting the Court's valuable time.

 

I'd read up on Full & Final Offers (I'm no expert), because you need to make sure they don't sneak in a poison pill of some sort. Demand that they do make it a complete end, and they must also delete anything nasty they have said about you over with their mates at the Credit Reference Agencies (CRAs).

 

But in summary, looks like Capital One know they are onto a loosing wicket here, the Threats are just them lashing out to try and bolster their retreat when they pull up the stumps and head back to the changing rooms.

 

Time to move in to put them out of their misery!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Our Posts just landed at the same time!

 

By email 5 mins ago:

 

Dear Mr X

 

Without prejudice save as to costs

 

I'm delighted for you, this is good news.

 

Don't call her, obviously! But do perhaps send back an email to accept, once you have checked any CAG Threads on Full & Final Offers.

 

Christmas for you is now on Capital One!

 

Do let us know when this is sorted, because I'm sure the Site Team will be only too pleased to change the Thread Title for you.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Ah, I hadn't realised there was a balance outstanding.

 

OK, in that case, I think the way ahead will be to push for them to pay you, but to include ending the issue once and for all because they do not have an Agreement worth squat.

 

They may dig their heels in, in which case this will probably need to roll on into Court. But if it does, then maybe ask the Judge when it does to declare the alleged Agreement unenforceable under s142.

 

Maybe tell Wendy that, and see if you can wrap this up Today on all counts, i.e. they Pay you and agree to end hostilities for ever.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Looks OK to me, but maybe get a 2nd opinion form one of the Legal bods on CAG just to make sure you have not missed something they can later re-open to annoy you with.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

The main Legal Bods are off-line at the moment, so best suggsetion is to see what you can find on CAG that covers Full & Final Offers.

 

But your letter is probably OK, the key issues are you want an end to this, and you do not want any smelly bits left on your Credit Files.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

ah ok, thanks for that. Yes im not going to agree to getting £600 odd if in 3 months time they are after me again based on the same flawed agreement. That doesn't make sense so i'll stick to my guns.

 

I think you must stick to your guns, because my guess is they'll not want to send you a Cheque otherwise.

 

Indeed, they were probably intending to deduct the Refund from the Balance, and then sell the Debt to a DCA, after they write off the remainder against Tax.

 

I'd maybe hold off sending anything until you get a good 2nd opinion on what to say.

 

I do now suspect they had no intention of getting their Cheque Book out, so the Offer was just more smoke and mirrors to get that removed from the main Debt to perhaps give them or a DCA a clearer run at you for the Balance.

 

Going back a bit, do you have the Default Notice, and was that valid?

 

If it wasn't, then all they can claim from you, assuming the alleged Account has been Terminated, is any Arrears that were fairly due before Termination.

 

If that is, say, £100, then that's the Total of what they can ask for. Maybe agree to knock any true Arrears off the Refund to show willing?

 

IOW, your little letter to Wendy Underpants should mention their problems with enjoying the benefits of s87, making it clear that they can forget about the Balance anyway, as it's lost forever (assuming the Default Notice is indeed invalid).

 

If you see what I'm getting at, you must get the next Letter tight and hard hitting if you want to end this and get a Cheque in time for Davey77's Christmas!

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello Davey77!

 

Are you sure the Default Notice was OK? i.e. did they allow you the Statutory time based on Date of Service, was it set out in the Prescribed way, and were the Arrears stated accurately?

 

If you are seeking a Refund...then wouldn't that mean the Balance was not accurate, and in turn the Monthly Payments based on that Balance would be inaccurate?

 

If so the Arrears would be inaccurate making the Default Notice demand for Arrears inaccurate.

 

Either way, see what they come back with.

 

If they get hissy, then it's more likely that a Refund via Cheque was not actually on offer, they were probably thinking more along the refund to Balance plan, and sale to DCA etc.

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello Davey77!

 

OK, that confirms they had no intention whatsoever of getting the Cheque Book out!

 

The paragraph about their mates at the CRAs was just Debt Industry brollacks.

 

She's letting herself get carried away again thinking they have an Enforceable Agreement.

 

If there is no binding Agreement, you owe them nothing. Likewise, you owed them nothing, so all late Payment markers and the Default should be removed, full stop.

 

Time to find that Default Notice I think!

 

If that is invalid, then you may yet turn the tables on them...adding Unlawful Rescission of Contract to the next Claim.

 

Likewise, if that is invalid, then you owe the Arrears only (that assumes they even have an Agreement).

 

If your Credit File is trashed, then they can't really trash it any more, so that issue is no real Threat against you.

 

I'd hold off responding until you've found that Default Notice.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Fully understand.

 

The pressure is on, because if they have yet to twig that the Claim has been Struck Out, they may change their tune. So, striking while the Iron appears to be still hot is an option to consider very seriously. If that goes to plan, you can forget all about Capital One by the Weekend.

 

Flip side is they find out Tomorrow, and change their tune the moment they do.

 

Also, they could be reading this, and so know all too well the weakness of their position, and know they would rather not go to Court anyway. It would be Small Claims Track, they'd have Barrister's Fees to Pay regardless, they could well lose, they could well still end up Paying you £674.01, they may be forced to wipe the nasty Data off the CRAs, and then they may find you also want compensation for Defamation because of this adverse Data relating to a non-Agreement with zero Data Consent.

 

Indeed, if that Default Notice has any flaws, you could add even more problems for them, such as an additional Claim for Unlawful Rescission issues!

 

So, maybe fire off the email, but plan for the worst...i.e. how to best manage the possibility of re-starting the Claim, or how to combat a full-on Claim from them for the whole Balance.

 

Make sure you have a strategy to come back out fighting. If they have no idea about the Claim, they may back pedal anyway. But, if they think this has to be wrapped up fast, you could get a binding email accepting your terms before you have had your 2nd Cup of Tea Tomorrow!

 

Cheers,

BRW

Edited December 4, 2008 by banker_rhymes_with
Clarity

[banker_rhymes_with]

Hello Davey77!

 

Ok.. now what?! She rings the Court in a minute to find out it's been vacated already and... revokes the offer or calls it a day. I immediately replied accepting the offer so.. guess we wait and see!!!???

 

I think you are in a stronger position than you think.

 

If they kick up, just front up to them and say it's a simple Court mix-up, and the Claim will be going ahead, see you in Court when you'll be after a real Refund via Cheque, and it'll be for more than the original Claim now you can see they have no Enforceable Agreement.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

I think if you look at this from their position, they are not in a strong position at all.

 

1. They have no Agreement apart from a Copy of an Application Form with no Prescribed Terms, and a wishful Witness Statement trying to big that up into something it isn't.

 

2. You are not a vexatious litigant, so the Court is highly unlikely to award any Costs against you even if you lost. Their Threats about a Barrister were just hot air to undermine your confidence.

 

3. It should go Small Claims Track in any event, where Costs are intended to remain low.

 

4. They know they are holding their argument together with rubber bands, bits of string and faith.

 

5. They'll have to Pay for someone to attend Court, plus all of the Travel costs to get down to sunny Devon. That alone could cost them the thick end of 1k, and they would not get that back from you.

 

6. They know they'll probably not get anything back from you anyway, as you've made that clear I think.

 

7. Your Claim is valid so, if they lost, and the Court also elected to declare their so called Agreement unenforceable via s142, they'd be looking at Paying you at least the £700 odd that you are claiming, plus anything else you can add, Unlawful Rescission etc, a Claim for a Refund of Interest you should never have needed to Pay etc.

 

Thus, to fight this one, Capital One are staring at Costs that will exceed 1k I'd think, and to that they may need to add a true Refund for what you are claiming.

 

If they Won, they'd get nothing, and would have to Pay out maybe 1k in Costs to see you off.

 

If they Lost, they'd still get nothing, and would have to Pay out maybe 1k in Costs just to enjoy losing, and would then have to Pay you £700++.

 

They Win = 1k in Costs = -£1,000.00

 

They Lose = 1k in Costs + £700 Payment = -£1,700.00

 

So, it's a no Win situation for them whatever happens if it does go to Court. Whereas getting you to accept the virtual Offer on the table is actually a Win-Win situation for them.

 

This is because they get to avoid any Court Costs, and can close the books on you and they can Write Off the Balance against Tax.

 

What I'm saying is...if they get silly, then they are just being silly. They know they don't want to go to Court, so my guess is they won't say a word, and you'll get a Letter saying it is all sorted, have a nice day.

 

So, if they come back to pull out of the Offer, then give them no mercy after that. Go for a proper Refund via Court and in the form of a Cheque not a virtual Refund that suits them.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

Just had this:

 

Dear x

 

I sent through to Torquay and Newton Abbot County Court this morning a fax to advise that this claim has been settled and have just telephoned them to check they had received my fax.

 

The Court Clerk said they would appreciate receiving your written confirmation that the claim has been settled. I appreciate it may be difficult to fax a letter to them, but if you could send a letter and also telephone them to confirm the position, it would be appreciated.

 

Yours sincerely

 

Wendy Starr

Capital One Bank (Europe) plc

 

I'm fairly sure Capital One will be aware of the position, but that won't stop them closing this off, as explained above.

 

It would make no sense for them to back pedal now.

 

I think if you want this to be closed, you can achieve this and you can then move on and forget all about Capital One for ever!

 

Cheers,

BRW

[banker_rhymes_with]

I do think this is done and dusted but will await the postal confirmation. Once i have it in black and white on paper then i would say that's legally binding and i'll have that tea, i mean coffee!

 

Stuff the Tea and Coffee, have a large Beer, and a few others to go with it!

 

I think you deserve it.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Davey77!

 

I think it's the result Capital One wanted, just to avoid the prospect of having to shell out hard Cash to go precisely nowhere.

 

I think you could've teased some money out of them but, I do, fully, and totally understand that getting one blood sucking banker off your back is a satisfactory goal all in itself.

 

I think it's all done and dusted now and, any second now we'll hear the Fat Lady singing...

 

...or is that strange ethereal noise Davey77 howling like a happy baboon after completing his 17th celebratory Pint?

 

Cheers indeed!

BRW

Edited December 6, 2008 by banker_rhymes_with
Can't Swpell...or Tripe!

[banker_rhymes_with]

Hello Davey77!

 

Just thought I'd drop in and confirm that, after very careful thought...

 

...I think Capital One are the lowest form of CAG-BOTing life that I have ever CAG-BOTing come across.

 

A more useless bunch of CAG-BOTs you could not hope to meet in your wildest CAG-BOTing dreams!

 

A complete waste of CAG-BOTing space!

 

P.S. I've pre-CAG-botted myself to save the Site Team from doing it!

 

Don't want to offend those of a nervous disposition.

 

But what are they playing at? I thought this was all wrapped up weeks ago...obviously not. Confirms you just cannot trust a banker, as I've been saying for many, many years.

 

Cheers,

BRW