Capital (one) Justice

[Bigdebtor]

Johnerog

 

I see the logic in what you say - assuming I have interpreted you correctly - WE can't reclaim anything already paid out by us towards the amount borrowed - but THEY can't claim any interest or charges - presumably because they can't prove what was agreed?

 

If that is right then anyone who has a credit card for over 50 months and paid the mininimum 2% per month has therefore REPAID the original debt - and no balance is due if they have an unenforceable CCA. Presumable anyone who has paid 2% for 100 months has therefore overpaid by 100% and will therefore be due the entire credit limit back as well as the interest and charges?

 

Can you please let us have some back up (legal) information to re-inforce what you say and that we can quote to OC's in our claim to have all interest and charges already paid out refunded - plus any overpayment of the original debt due back if paid back beyond 100%?

 

BD

[johnerog]

I see the logic in what you say - assuming I have interpreted you correctly - WE can't reclaim anything already paid out by us towards the amount borrowed - but THEY can't claim any interest or charges - presumably because they can't prove what was agreed?

 

 

BD.

Firstly. I am extremely impressed with your maths accumen.

 

Secondly. Yes. Although I think there is a 6 year limit on claims unless you can prove fraud.

I have the info somewhere, I will dig it out but I will need a little time.

I'm pretty sure there is something in the Wilson case as well. She was repaid everything + interest. What a result!!!!

But remember we have to get a s142 first.

Check out Basa 48 post above 14th December.

[johnerog]

BD. Apologies for the delay, busy season. John

[johnerog]

A thought occurred in the mists of Christmas cheer over all of this. I watch keenly the twists and turns of the arguments. There seems to be a blurring of the edges all of the while between "CIVIL LAW" and "COMMON LAW". Well is this not a double edged sword for alleged creditors?

 

In all my studies and life experience it has been driven into me (by professionals) that it is a fundamental and foundation principle in British Law as a whole that you may NOT profit from unlawful or criminal activity.

 

Consider:

 

1. Non compliance with CCA 1974 is unlawful (Statute Law)

2. Use of DCAs and unlawful enforcement procedures etc.

3. Issue of non compliant, forged or fraudulent documents is unlawful

4. Coercion, threats, trespass and more are all unlawful.

5. The reconstitution issue also is unlawful under the Law of Tort and Contract.

6. Perjury is both unlawful and criminal.

 

Therefore under the COMMON LAW does that not mean that there is a prima facie case to recover ALL interest and charges from credit card accounts right back to day one of the agreement (if that even exists) and ONLY pay the actual transactions the alleged debtor has made. The recovery to comply with Common Law would therefore attract a repayment with "statutory" interest and restitution at the contractual rate of interest in line with the Banks profits over the period of time that the card has been in use.

 

This wasn't what I am looking for but helps. Posted by 'oiley rag' on the Claim Stayed thread.

[flooz]

unfortunately, this is a busy time for me too, and I can't quite get my head round that at the moment. Perhaps I'll be able to once I've got more time to contemplate.

 

Our phone calls from CapOne are at about 2 a day, every other day at the moment. They ask for DW - we say 'he's not here', or if we get caught out, we just don't answer their security questions.

[johnerog]

When they ring next time ask them their name to add to the court case for harrassment. The reaction from some of them is quite funny.

[johnerog]

I apologise for the delay in responding. Unfortunately Miss Starr is away from the office due to illness.

Our position remains as set out in our letter of 25 November. We have complied with S78 by sending you a reconstituted copy of your original agreement. There is no requirement under S78 to retain or send you a copy of the signed agreement.

The decision in McGuffick made it clear that even if an agreement is unenforceable as a result of none compliance with S78 (which for the avoidance of doubt is denied) the debt remains due and owing and the debtor is liable to make payment. In addition the creditor is entitled to demand payment, issue a default notice, send the debt to a debt collection agency if the debtor does not pay and report non-payment to the credit reference agency.

For the reasons set out above and in our previous correspondence we will not be writing off your outstanding balance or removing any data from your credit file.

However, with regard to your request that we repay all charges and interest levied on the account, I am investigating this matter further and will provide you with a substantive response thereon as soon as possible.

Regards

 

 

 

This is a copy of an e-mail from that nice Mr.Berman. Couple of points:

1. All they have sent me is an up to date t&c's.

2. McGuffick- the agreement was eventually found so they had his signed permission. Not so in my case.

3. Be interesting to see what they say with regard to repayment of charges etcetera. Not holding my breath.

 

I am in the process of writing my Part 8. Will post that later for comment.

[johnerog]

This is first draft; all comments welcome.

 

1. On the 21st August 2009, I issued proceeding against Capital One Bank under Civil Procedure Rules 31.16 to produce a correctly executed, signed agreement numbered; XXXXXXXXXXXXXXXX [XXXXXXXX. XXXXXXXXX Court. Hearing Date, 28th October 09]. (documents enclosed)

2. On 27th October 09, a Litigation Paralegal employed by Capital One Bank named Adam Bergman stated in an e-mail to me that Capital One Bank did not hold in its possession a signed copy of any credit agreement in my name and offered to pay my costs of £95. It was too late to vacate the hearing. Documents enclosed.

3. On the 28th October 09 the court ordered that Capital One Bank pay me the sum of £95 in costs as agreed.

4. On the 25th November 09, M/s Wendy Starr, also a Litigation Paralegal employed by Capital One Bank, wrote to me (copy enclosed), stating that Capital One Bank ‘were unable, and would not be able to, provide a copy of the signature page of an executed agreement’.

5. Therefore; pursuant to section 142 of the Consumer Credit Act 1974 and amended, I ask the court to declare the alleged agreement numbered XXXXXXXXXX, null and void and unenforceable.

 

Data Protection Issues.

 

6. In the letter of the 25th November, M/s Starr states that Capital One will continue to report the alleged debt to Credit Reference Agencies and Debt Collection Agencies.

7. As Capital One Bank do not have, and have never had, my written or verbal permission it is the contention of the claimant that the defendant has and continues to process my data unlawfully by providing it to a third party in contravention of the Data Protection Act 1998.

8. Therefore; pursuant to section 14 of the Data Protection Act I respectfully ask that the court order the defendant to cease and desist processing my personal data and that it requires any third party in receipt of said data to destroy it forthwith.

9. Damages…..To be contined.

 

 

BD still not found it yet, will keep looking.

[johnerog]

Do I need to do a draft order as well?

[johnerog]

I'm having a very lonely new year.

[the_shadow]

Johnerog,

 

After the Manchester rulings its now becoming clearer that the judiciary "appear" to be attempting to help the banks in any which way they can.

 

If you have a read of this thread it might show a clearer picture of whats going on in the CCA unenforceability arena at present.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

I know you have written proof from Capital one that they do not have the signature page and that should be like golddust.

 

S.

[johnerog]

Hello Shadow, many thanks for your time.

Yes, cap one have admitted they have no agreement but you would not believe the grief I am still getting from them. Letters and daily phone calls still trying to collect on a non-existant contract.

I want to fight back against these b*****d's. I have repaid them many thousands over and above anything I borrowed and I want some back. I also want to stop them mauling my credit rating, just because they can.

 

Forget morality this is business. I want to do unto them exactly what they, and other companies like them, are trying to do to me. And don't forget I have the law on my side.

 

I have read the the Manchester cases and I have said from the start that it is a nothing decision; ie. nothing has changed. If I can stop Cap One; and with the help of other caggers I can, then I may be be able to stop them doing the same to some body else in the future. [maybe i'll get a few bob back as well.]

[flooz]

Awh John, don't feel lonely, I'm sure there are many, like me, that are watching your thread and 'keeping you company', lol.

 

I think you've done so well and you're definitely one of my 'mentors' for my own arguments with Cap1.

 

In fact, I've got to post on my own thread the latest development this evening ;-)

[the_shadow]

Hi John, I cant agree with it being a "nothing" decision but it is biased and as clear as mud... whats important is that you read/understand it and prepare just in case they try and hoodwink the judge, you'll need to be able to point out the relevance or rather lack of it in the cases in Manchester.

 

S.

[citizenB]

John,

 

Did you ever read davey77's experience with Capone. He took them to court and won, in much the same circumstances I think.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/171391-davey77-capital-one.html

 

If I recall correctly, Ms Starr became unwell when it all got too much for her

[johnerog]

Hi John, I cant agree with it being a "nothing" decision but it is biased and as clear as mud... whats important is that you read/understand it and prepare just in case they try and hoodwink the judge, you'll need to be able to point out the relevance or rather lack of it in the cases in Manchester.

 

S.

 

Understood Shadow. Thank you.

John

[johnerog]

John,

 

Did you ever read davey77's experience with Capone. He took them to court and won, in much the same circumstances I think.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/171391-davey77-capital-one.html

 

If I recall correctly, Ms Starr became unwell when it all got too much for her

 

Thank's citB I will read it now.

john

 

PS. If there are gaps in my postings please forgive me. I have good days and bad days. Cheers.

[johnerog]

John,

 

Did you ever read davey77's experience with Capone. He took them to court and won, in much the same circumstances I think.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/171391-davey77-capital-one.html

 

If I recall correctly, Ms Starr became unwell when it all got too much for her

 

Thanks CitB.

Good memory on starr, have you noticed that Ade Potts, the person who took over is an anagrame for post date, fiendishly funny these paralegals.

I have PM'd dave to tell him I intend to pinch everything he has come up with.

Thanks again

John

[pawnbrokers]

john - keep at it - we all have bad days - just hang in there - the good days will make up for it - good luck -pb

[flooz]

Thanks for visiting my thread John. How are you doing with yours? Anything new yet?

[johnerog]

My appologies for the gap I am back to fighting fitness now. Comments on the following brief details of claim please.

 

Part 8 I think we agreed.

 

John

Edited February 9, 2010 by johnerog
missing word

[johnerog]

Brief Details of Claim.

 

1.The claimant requests the Court make a declaration under section 142 of the Consumer Credit Act 1974 that the Agreement numbered XXXXXXXXXXXXXXXX is null and void, as the defendant has admitted there is no enforceable agreement in existence.

 

2.The claimant requests that the court instruct the defendant to cease processing the financial information of the claimant without permission, contrary to the Data Control Act 1998.

 

3.The claimant requests the court instruct the defendant to remove all detrimental information regarding this account from the files of all Credit Reference Agencies.

 

4.The claimant requests the reimbursement of charges and interest improperly levied against account numbered XXXXXXXXXXXXXXXX in the sum of £xxxxxxx.

 

5. Damages to credit rating

Edited February 9, 2010 by johnerog
add '5'

[johnerog]

Witness statement.

 

Preamble, Name address etc.

 

I produce one e-mail and one letter from ‘litigation paralegals’ at Capital One Bank Ltd., admitting they do not possess an agreement or any other legally binding document with regard to account referenced XXXXetc.

 

The claim against the defendant.

 

1.During a court action in November 09 the claimant discovered that no legally binding agreement existed between him and the defendant and that all payments made to the defendant were in the mistaken belief, [stated by the defendant] that a legally binding contract existed between the two parties. As this is not the case the defendant asks the court for a declaration of parties under section 142 of the Consumer Credit Act 1974.

 

2.The paramount principle of the Consumer Credit Act of 1974 is to protect unwary or unworldly consumers from unprincipled money lenders and it sets out in no uncertain terms how an agreement for the provision of credit must be documented. However; in this instance, the defendant has admitted that no agreement exists and the claimant submits that to permit the defendant to retain any money paid by the claimant under false pretences would be wholly contrary to the policy aims of the statute.

 

3.The defendant has charged the claimant substantial sums for interest and charges during the life of this account and the claimant submits that, if not entitled to a refund of all payments made, he is entitled to a refund of all charges and interest levied on the account as the defendant had no contractual or legal right to apply them.

 

4.As no agreement exists the claimant has not agreed to any terms or conditions and so cannot be in breach of such. Therefore, the defendant has shared bogus financial information with several credit reference agencies including the reporting of defaults, arrears and non payments. The claimant cannot be in breach of contractual obligations where no contract exists.

Therefore the claimant claims;

1.The refund of all charges and interest levied upon the account plus interest at 8%

2.An order from the court that all entries to the files of Credit Reference Agencies with regard to this account be removed.

3.Compensation in respect of damage done to my credit rating, to be assessed by the court.

Edited February 12, 2010 by johnerog
room

[johnerog]

comments and advice please. its my intention to start the ball rolling 1st of March. Dewi Sant.

 

Any case law anyone.

 

A very big thank you to Davey77.

 

John

Edited February 9, 2010 by johnerog
Adding thank you

[foolishgirl]

3.The defendant has charged the claimant substantial sums for interest and charges during the life of this account and the claimant submits that, if not entitled to a refund of all payments made, he is entitled to a refund of all charges and interest levied on the account as the defendant had no contractual or legal right to apply them...

 

.....Therefore the claimant claims;

 

1.The refund of all charges and interest levied upon the account plus interest at 8%

2.An order from the court that all entries to the files of Credit Reference Agencies with regard to this account be removed.

3.Compensation in respect of damage done to my credit rating, to be assessed by the court.

 

IMO a Part 8 is not an appropriate way to make a 'money' claim. Whilst you can ask the court to make a decision (as in Clause 3) you may not succeed in going on to ask it to make a monetary award (as in 1 & 3 above).