ajs444 v Cap. one ** WON - They Cave In Just Before The Hearing **

[mrbrooks]

Hi asj444, I have sent out the LBA about 8 days ago for the charges on my moms account, coming in at about £700, I also asked about interest rates hikes and other nonsense, and got much the same as you, I have had all the same BS, empty answers and time wasting excercises as you have. I have been fighting off CapOne since Nov last year, and i can tell you they have played some dirty tricks, even told what can only be described as bare @ssed lies to the FOS on 2 occasions and tried to circumvent them on another occasion.

 

I had to report them to the ICO regarding phone calls (though the ICO didn't think 100 calls with no message and strange disappearing telephone numbers, in 45 days constituted as harassment, which of course is utter bunkum) and they told me CapOne were correct in their assumption that we had no right to retract consent for use of telephone communications, it did seem to stop the calls though, and I suppose it got them on the ICO radar, I did point out what a load of nosnense it was because we could just change her number and they would be none the wiser and in no worse of a position, proving my point, i.e. they don't need that number to carry out their contractual duties...

 

I also have been very lucky with a couple of great girls from the FOS, who initially sided with Cap One, but when I pointed out, 'they were lying to you', I sent in screen shots and documents I had gotten from the SAR to support my case...and they changed their minds about what was going on...

 

CapOne even tried to deny things like, my mom had given me authority to deal with her account, but they denied any knowledge or evidence of this and would reject my letters, this was my first insight to how stupid they really can be, because, the letters of authority, and the notes from their own system, showing 3 entries that clearly stated my name and has authority blah blah blah, which I had obtained by SAR from them...I had to send them proof, from their own systems...so again, there's no way they did not know this, they were just wasting time...what they really wanted, was something with my moms current signature, but I refused and in the end they had to accept they had got it wrong, took 6 weeks though...and they gave me some flannel about how it was on another screen...

 

The latest round from them is to start sending very ambiguous letters, that don't really say anything about anything, like; We have made a refund to your account, thank you...no mention of why, how much, when, how you came to this decision, what it is in relation to...this is a little frustrating considering the amount of traffic I mail to them, I believe this is just another thing they use to confuse people and to stall for time...my suggestion is, ignore it all (their trickery that is), stick to your guns and keep as polite as possible, and pull them up on EVERYTHING. I figure I can cost them a lot of manpower and money, so I object, argue, ask for clarification, request more info etc, all the time about everything, its a tip a friend of mine uses in similar cases, where he writes and calls all the time to the other sides legal team ...And another tip I use, deal with everything separately, so I make request for things in their own right and don't use one letter to address multiple issues where possible...again, i'm sure it frustrates the cr@p out of them, but more interestingly, cost them more manpower and more funds...I once had about 4 different executive team members writing to me about similar things, so I would send them all the same letter on the same day too and told them one of them needs to figure out who is in charge...now I only get letters from Mr LQ...

 

I have just hit the 8 weeks for them to respond to our PPI claim, all I got was 'we need another 8-10 weeks' !pfff!ffft!, get lost, so I of course politely said, feckoff...I sent them a reply saying as such, and today I have sent in a formal complaint regarding their failure to address the claim within a reasonable time, pointing out if they are overloaded and backed up with claims (as their letter claims) then they should show all of their customers a 'genuine' gesture of goodwill and hire some more people, cos lets face it, there's stacks of people who could do with a job...

 

I cannot believe how arrogant, greedy and sometimes very stupid this company is, they are the worst people/company I have ever had the displeasure of being involved with. And here is the killer, what started this all off, my mom hurt her leg back in Nov and I called and told them she didn't have enough to pay the full min amount but she would pay £50 for the next 3 months (bear in mind shes been with CapOne since 1999 and this is the first only time she has been in trouble with them) so they sent her a form to fill out, it never arrived, so they started harassing her 2 weeks late, I called and they were slighty helpful and said they would send another form out, but still harassed her for the next 5 weeks with calls and and more letters, and in Feb 2012 (3 months after my initial call) they defaulted her even though she had paid the £50 she promised, but they argued they never agreed to it, and at that point, I decided they were utter a$$holes and decided i needed to do something about it, otherwise, I would never had gone down this route, she just wanted a little respite while she was struggling and i'm pretty sure, its now well on track to cost them far more than the account is worth...

 

All I can say is, keep a record of everything, and i mean everything, and well done for getting this far, I understand 100% how you feel, as does virtually every person on this forum, I could not have gotten this far without the support of CAG and the posters like yourself...

 

Good luck and we will all be rootin' for ye when ye get to that court...

 

mrbrooks

Edited August 8, 2012 by mrbrooks

[ajs444]

Hi Mr Brooks, I know exactly how you feel, because I haven't paid them they have passed account to a DCA, whom I informed about the ongoing case with the FOS and my court papers.

 

They came back with the following answer, Capone have given their final response to me and the FOS, by giving FOS details of rate rises over the years, this was in exchange for me agreeing to no court proceedings for refund of charges, seemingly this was agreed to by the FOS???????

 

On contacting the FOS they have told me that the case is still open, the adjudicator has spoken to them on several occasions since their "Final Response" and the case is waiting on allocation to an ombudsman, no such deal regarding court action has been brokered.

 

How can a financial institution of their size get away with this?

 

Another one to add to the corrupt club such as RBS, Barclays, Santander etc.

[ajs444]

Hi Mr Brooks,

 

This is my original thread http://www.consumeractiongroup.co.uk/forum/showthread.php?251453-ajs444-v-Cap.-one

[mrbrooks]

On contacting the FOS they have told me that the case is still open, the adjudicator has spoken to them on several occasions since their "Final Response" and the case is waiting on allocation to an ombudsman, no such deal regarding court action has been brokered.

 

This, does not surprise me, Cap One have lied, YES bare @ssed lied, to me, and the Adjudicator, and attempted to circumvent the FOS recommendation...

 

Good luck...

 

mrbrooks

Edited August 9, 2012 by mrbrooks

[ajs444]

Well now being threatened that they will claim expenses when they win their case at the Small claims Court, nothing like confidence.

Have comeback with an improved offer but still nowhere near my claim.

[ajs444]

Also the response that they made was originally dated the 8th August, never posted by them till the 28th, talk about slow, then they want me to make a decision pronto, deadline for Court is the 14th.

[ajs444]

Well Capone have indicated that they are going to defend, time to get out the robes and wig methinks.

[mrbrooks]

Hi ajs, I haven't sent my own court papers in yet, but Cap One have told me to go swing basically, they are not entertaining the idea they may owe any money and they do not consider any of the charges unlawful nor penalty charges, and, they also said, 'our charges are transparent'...

 

Good Luck...

 

mrbrooks

[ajs444]

I am heading to Court with Capital One on Friday and in response to me mentioning that I will be pursuing them using The Prescription & Limitation (Scotland) Act 1973 for default charges, they state that the legislation will not apply as the credit card agreement is set up in English Law.

I have told them that the Statute of Limitations would be thrown out of a Scottish Court, this I have learned from reading Advocate's submission in 20 years plus discussion in Sticky.

 

Anyone clarify?

[citizenB]

Surely they cant rely on English law in a Scottish Court ?

 

Will flag your thread for advice from site team, for you.

[IdaInFife]

Scottish Law applies

 

http://www.govanlc.com/suedinengland.htm

[seriously fed up]

Ida's advice is good - the Civil Jurisdiction Act gives you the option of which jurisdiction - Scotland or England - and which you chose will determine the law to apply.

 

I rather suspect a Scottish Sheriff would die in a ditch rather than have a lawyer tell him that English law is to apply. Besides the consequences would be nonsense. Would it mean for instance that anyone in Scotland could only bring an action against CrapOne in an English Court? Hard to dispute that conclusion when the only alternative is for Scottish Sheriffs to apply English law - see my reference to die in a ditch again.

 

But, lets suppose they are successful in this argument - where does it take them? Basically your dispute in this respect is how far back you can go with your claim against them? They are arguing that the Prescription and Limitation doesnt apply as its Scottish law and the dispute has to be resolved under English Law. Fine! Refer them to the Limitations Act 1980 and in particular s32 which arguably says much the same thing

 

http://www.legislation.gov.uk/ukpga/1980/58

 

On, Clyde, a, think, the, came, you, bike, do, I, up? Comes to mind!

All ther best on Friday.

Edited December 5, 2012 by citizenB

[IdaInFife]

Thanks SFU

[ajs444]

Thanks all for your input, have put argument up to the slimeballs called Capital One, only to receive the following reply:-

 

Thank you for your email. Please note that the person from whom you sought legal advice may not have been aware that your credit agreement is governed by English law.

[IdaInFife]

their stupidity

[IdaInFife]

reply :

 

Thank you for your email. Please note that the person from whom you sought legal advice may not have been aware that the Scottish court is governed by Scottish law.

[ajs444]

Well that was scary, they had some nice young thing representing them, I think she was as nervous as I was.

 

Well we had a 10 minute hearing with the Sheriff, after a 45 minute wait, Capone objected that the claim was time barred under Statute of Limitations, I had to remind her that the legislation had changed having informed Capone of the change and received an acknowledgement, she said that statute of limitations should apply as agreement was in English Law!!!

 

They also rejected the claim as I had claimed compound interest on the default sums, they have to follow this up with a written submission within 14 days and Proof hearing set for the week before Xmas.

[seriously fed up]

How can it be that

 

1. the Civil Jurisdiction Act gives you the right to pursue a UK company in a Scottish court if you are domiciled here, BUT
   
2. a credit card agreeement (or any contract) can be said to be determined by English law.
   

This HAS to mean either that the Civil Jurisdiction Act has been kicked not so much into the long grass but into the bushes and that if you live in Scotland and have a contract like that put out by CrapOne (and the reference to the law of England isnt that unusual in T&Cs btw) then you will have to sue them per an English court. Either that or the Sheriffs will have bone up on English law - in that case who would the appeal be to? This is just nonsense. Statutory law takes precedence over any contract. Suppose your T&Cs said that in the event of a late payment they could come along and cut your head off? Garbage!

In any event AJS, did you not ask her why the claim was time-barred under the Limitations Act? The issue is pretty much the same - "mistake" under Limitations and "should you have known?" under the 1973 Act up here.

How did the Sheriff take it? I suppose her bravery in putting this argument to him should be a matter of congratulation. As for your emaili from CrapOne, you might want to respond to him drawing his attention to the Civil Jurisdication Act???????????????????????.

[ajs444]

Never really got a chance to say anything, the Sheriff read out my summons, the 2 of us approached the bench, she asked Capital One if they were defending and on what grounds?

Their lawyer said they objected on 3 points:-

 

1. Charges were fair and transparent

 

2. I had claimed compound interest, which they were not happy about.

 

3. The claim was time barred under the Statute of Limitations Act.

 

On the 3rd point I objected, saying the case would be under Scottish Law, The Prescription & Limitation (Scotland) Act 1973 which I had previously informed Capone in an e-mail, which was also acknowledged by them.

 

Their lawyer was adamant that because the agreement was set in English Law, the Limitation Act would apply.

 

To stop a full blown argument taking off, the Sheriff intervened and told Capone to submit their defence in writing within the next 14 days, setting Proof hearing for 21st December, I was directed by the Sheriff to read the Scottish Courts website as I would be dealing with the case myself.

 

So the case is still up in the air for debate.

[seriously fed up]

Well a defence of English law applying in a Scottish Court when there is Scottish legislation in place will be, at least, interesting. I hope you will share it with us in due course. I think I might be inclined , were I you, to submit that either way - whether the Scottish Act or the English one - whether "should you have known" or "mistake" it comes to the same thing. Belt AND braces! Re 1 their point about transparency stands only in respect that this its in their T&Cs - the issue is one of fairness. You can argue, how much does a couple of pieces of paper and a stamp cost (ufair I know, but its not much more than that - a Google search for some examples of where people have gone into this would be useful) - the ball is then in their court to demonstrate their cost structure (I suspect they would rather have both eyes gouged out - not a job fora young thing anyhow). RE 2- did they not use compound interest? If they did, its only restitution.

[ajs444]

Hi SFU,

 

I've e-mailed Govan Law to let them have a look at it, will have to wait and see the detail when Capone respond.

 

Then again maybe they wont want to go there (fingers crossed)

[Guest alan703]

Hi SFU,

 

I've e-mailed Govan Law to let them have a look at it, will have to wait and see the detail when Capone respond.

 

Then again maybe they wont want to go there (fingers crossed)

 

How did you get on with this?

 

I am about to challenge Halifax for referencing the limitations act 1980 in the feeble offer they have just made me.

[ajs444]

So got written reply today, Capone are represented by Burness, one of the top guns I believe, so no expense being spared.

 

1. They still say agreement is covered by English law

 

2. Once again they refer to the Limitation Act 1980, and case is time barred. They say the claim does not fall within section 32(1)© as it is not for the "consequences of a mistake". UTCCR does not come into the equation, and also does not reflect the case Kleinwort benson v Lincoln City Council.

 

The pursuer has subsequently sought to rely on the Prescription and Limitation (Scotland)Act 1973. The legislation is not applicable as the parties agreement is governed by English Law.

 

3. The charges are fair and reasonable and not penalties as alleged.

 

The pursuer seeks to rely upon the findings of the OFT, these findings are not a statement of the law.

 

4. In relation to the terms which are not time barred, the terms giving rise to the charges fall within Regulation6(2)(b) of UTCCR, the terms are in plain, intelligible language and no assessment under the Regulations of the fairness of those terms may relate to their adequacy as against services supplied.

 

5. In the event that the pursuer succeeds in any part of this claim this is not a case in which an award of compound interest is appropriate.

 

6. They ask for the dismissal of the pursuers claim.

 

So that is how it stands just now, will be contacting Perry Mason shortly.

[ajs444]

An interesting point from Advocate from 2007:-

 

I think the first point must be that while I appreciate the comments that people make regarding my argument, it is based on an understanding of the law of prescription as it applies in SCOTLAND. The law in England and Wales and Northern Ireland for that matter is different. s.32 of the limitation acticon 1980 therefore has no application in the Scottish courts and the concepts used in that Act are different as a matter of law and principle. A consumer making an argument based on the 1980 Act in the Scottish courts would be unsuccessful. it is not OUR law.

[IdaInFife]

I can just see the look on the judges face when One of Burness' tells the judge that