Cap 1 Charges and Default removal

[parveyb]

I'm in court for the allocation hearing this Wednesday. Have sent Cap 1 and the court a witness statement as i was advised by shadow (thanks). Have got my 3 court bundles ready.

 

Unfortunately I have heard nothing from cap 1 in relation to a settlement. So looks they will be attending the allocation hearing.

 

Can anyone give me any further advise of what i'm likely to encounter?

 

Has anyone attended an allocation hearing before or even one with cap 1?

 

Thanks

[Mr lex]

Hi Parveyb.

 

I'm sorry to have dropped off the radar but have explained in my PM.

 

As The Shadow has said this should only be about what track the case will proceed on. I have doubts that Cap1 will even attend, if they do, it will be a first, but you never know. You want this Small Claims only.

 

So, do attend, take your court bundles, do not give them to Cap1 unless the Judge insists. IF Cap1 turn up and try to turn this to a hearing, respectfully bring the Judges attention to the fact that it is supposed to be an allocation Hearing and nothing more. Explain you are at a disadvantage and have not preped for the main avent. I know it's late, but have you a list of cases Cap1 have already paid up on?? If not, there is one here.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?32601-Successful-Claims

 

If you have chance, copy and paste them for the Judge only !

 

This is your case, protacol says you get to speak first, don't let Cap1 railroad you.

 

Lex

[parveyb]

Thanks Mr Lex

 

I have the settled claims ready, have got 5 from that thread with claim numbers.

 

I will make sure they don't start bullying me!!

 

Should i give a copy of my bundle to the judge on arrival or if he/she ask for one?

[Mr lex]

Hi,

 

I would only give up your bundle if the judge asks for it.

Do make sure you have a copy of thier first offer letter, again, only give this to the judge.

We'll speak in the morning

 

Lex

[the_shadow]

Hi,

 

Sorry replying to PM so late...

 

Ok I see Mr Lex has responded to your queries.. all I can add is to keep in mind the judge is there to run the hearing and should be looking out for your interests as a LiP as well, not always the case but being polite and respectful to both the judge and the opposing solicitor (if they turn up) will go a long way.

 

Your witness statement should as suggested previously point out all their mistakes and you'll have the evidence with you in your bundle (statements etc) to back that up so you shouldnt be ambushed by anything tbh.

 

Best of luck, I'm sure you'll do fine.

S.

[parveyb]

Update on my visit to the allocation hearing today!!

 

Meeting was at 11am turned up early at 10.30am and went to the usher to advise I had arrived. Was then shown to the court room with the cap 1 solicitor at 11am (which was just was basically the judges office).

 

The judge basically turned to me 1st and said that he had read cap 1's witness statement and felt they were offering virtually all the money that I was requesting bar some purchase interest and 8% interest and the only outstanding issue was the default and adverse data. The judge then advised that I should really accept their money offer as it was only out by about £30 to what I was claiming. He also said I should remember that I would only be entitled to 8% if I won and many judges are considering giving less than 8%, due to the current interest rates set by the Bank England and also said that the courts were thinking of giving lower amounts for these sort of claims, as 8% should not be the standard rate any more!!!

 

He also then went to state the supreme court decision and an abbey national case recently contested, that the charges were found not to be penalties and the OFT were neither pursing this line no longer!!

 

The alarm bells were going off now!! I respectfully told the judge that I was under the impression that the supreme court ruling was only for bank charges and overdrafts and not for credit cards and I believed that the charges were unlawful and they were direct cause of the default adverse data.

 

He replied by telling me that as far as he was concerned, he felt they were the same and that bank accounts and credit cards are both credit facilities and banks and credit cards are there to make money from you (i really wanted to reply no s**t sherlock)!! He also went onto state that he believed that cap 1 had also acted within their terms of agreement!!

 

The cap 1 goon then butted in to read a few paragraphs from their witness statement to say that as far they were concerned the default was the only issue at hand now and that has been applied correctly.

 

The judge asked me why I thought the default was incorrect. I explained the amount registered was for a sum of £594 with the CRA, the actual charges were for £460 so taking that into account that for starters makes it incorrect, I also added that this was also made up of some interest charges on the unlawful fees. He smiled and said that had not been proven yet!! I pointed out further that i had only ever borrowed £240 from and repaid them £192.00 before the default and it was the adding of the charges that made the account unmanageable, which resulted in the account defaulting.

 

The judge stated that he agreed the claim should be heard under the small claims but told me that if he or another judge saw fit they could apply unreasonable costs behaviour if they saw fit!! And I believe that was directed at me in relation to accepting cap 1's money offer. Though he did offer me some encouragement in relation to the default by saying that I should pursue the removal of the default if only i can prove that it has been applied incorrect.

 

He has put a 28 day stay on the claim for me and cap 1 to find a resolution or we will be given a date for a small claims hearing. But he did implyto me that I should accept cap 1's offer on the money side.

 

After the hearing finished the cap 1 solicitor came over to me and asked if I would now be accepting their offer? I told him the judge had given me 28 days and i wouldn't been making any rash on the spot decisions. I did state to him though, if cap 1 would be kind enough to remove the default I would happily agree to their settlement there and then. He said he didn't think his client would agree to the default removal. So I told I him from what I was aware, that cap 1 had never actually defended these charges in a court room either and their goodwill gestures are merely smokescreens from having to justify they are not unlawful.

 

So there we go. I'm currently thinking I should accept their money side offer as a partial settlement but would need some other ammunition to get the default removed or build on it more.

 

ANY SUGGESTIONS WILL BE MOST WELCOME

[car2403]

I think this is normal in these types of hearings - these Courts clearly want these claims 'off their books', so try to put the pressures on to discontinue or reach a settlement.

 

The bonus for you here, though, is it's still on SCT. I've seen many (including mine!) claims allocated to Fast track - where that happens, I would be saying that you should discontinue, as you'd be liable to costs. That isn't going to happen now.

 

It also works for them, they will have to pay to continue along this track.

 

They won't remove the Default and settle until days before the hearing. I, personally, would have shown the Judge the list of claims that Cap 1 have settled out of Court, then suggested that there wasn't a stay before the hearing, as a result to force their hand. It's now going to take longer to have an application to request the stay to be lifted than it would to wait it out, it just means you have another 4 weeks worth of credit-unworthiness to put up with, I guess...

[parveyb]

Hi Car2403

 

I haven't mentioned it on my last post but I gave the judge towards the end of the hearing a list of discontinued cases and a copy of their 1st shoddy settlement amount and he tossed it back at me and said that cap 1 were well within their right to to settle claims after court action is initiated. I bet their solicitor will report that back to cap 1!!

 

So you still believe cap 1 are likely to fold with default? I think I should accept their offer now as the judge really put pressure to reconsider the money side of the offer.

 

Also I did not ask for stay or cap 1 but the judge himself has decided for one!!

 

I think this is as I put in my allocation questionnaire that I am on holiday between for the 1st 3 weeks of October and he wants me to take their offer of the money settlement they've offered.

[Mr lex]

Hi Parveyb,

 

First, I think you did great today. It's not easy to take your first setps up the court steps !!

 

You know where I stand on this, I'm alongside Car. I am thinking a letter to remind Cap1 the Judge has given THEM 28 days to settle this claim. I'll work on a draft for you.

 

Lex

[car2403]

Hi Car2403

 

I haven't mentioned it on my last post but I gave the judge towards the end of the hearing a list of discontinued cases and a copy of their 1st shoddy settlement amount and he tossed it back at me and said that cap 1 were well within their right to to settle claims after court action is initiated. I bet their solicitor will report that back to cap 1!!

 

So you still believe cap 1 are likely to fold with default? I think I should accept their offer now as the judge really put pressure to reconsider the money side of the offer.

 

Also I did not ask for stay or cap 1 but the judge himself has decided for one!!

 

I think this is as I put in my allocation questionnaire that I am on holiday between for the 1st 3 weeks of October and he wants me to take their offer of the money settlement they've offered.

 

Relax... He's given this stay for a reason, as he thinks you should be able to settle without coming back to Court. I know your paraphrasing what happened, but I suspect Cap 1 are wondering what they are continuing for, and will be aware of the cost to them.

 

Take some time to reflect, put some pressure on (as per Mr Lex ) and think about something else for a while. My point, really, was you have nothing to lose by letting things take their course.

[Mr lex]

OK, having given this a bit of thought, what do we all think of something like this :-

 

Your Name

Address

Ref No

 

Cap1

The address the settlement letter came from

 

Court address

Parveyb v Cap1

Case No

 

To (if you have a name from the settlement letter) or Dear Sirs

 

As you are now aware, at the recent allocation hearing, Judge (insert name) instructed you to try and reach a settlement of this case within 28 days. In order not to waste any further court time I am prepared to offer the following :-

 

The return of the charges to me you have already offered in your letter of the (insert date)

 

The removal of the Default notice you have entered on my credit files. Not just marked as satisfied.

 

If you are prepared to do this, I am prepared to withdraw my case and inform the court I have done so.

If you are not prepared to accept this generous offer of settlement, I will continue to pursue this case in court.

I reserve the right to present this letter at court and ask the court to consider awarding the compound interest rate you have charged me and also wasted costs.

 

As I am away on Holiday from xx/xx until xx/xx I require your agreement by the xx/xx.

 

I enclose I copy of your offer letter.

 

Yours sincerely

 

Parveyb

Edited September 30, 2010 by Mr lex

[andrew1]

I may be totally out of line on this, but would making this a Part 36 Offer be in keeping here?

[the_shadow]

[Why out of line Andrew1?]

 

The judge has indicated his thoughts on costs and how each party behaves, it therefore could be a good tactical ploy.

 

As far as I know Part36 offers dont apply in the stricter sense as the costs implication is not there I believe........ but thats only if a judge decides both parties have behaved correctly and attempted to settle as per his express wishes in giving this stay imvho.

 

Its certainly one to think about....

 

S.

[andrew1]

Well that's what I thought. Kinda heaves the pressure over to the otherside with regards to costs if the offer is made as a Part 36. I just wasn't so sure if it would apply in this situation as although I have used this myself it was a far larger game of poker I was playing than this financially. I know Insurance companies paying out on claims when they make their offers do it as Part 36 offers to encourage the claimant to accept or face costs. The thing is the recipient of the Part 36 (Cap1 if the poster here sends it) nor the claimant can make the court aware of the offer until after the judgement has been made and it has to be used very carefully, especially in this case where the offer financially is quiet high so it could back-fire on him/her if the judgement was less than the Cap1 offer and costs piled on the claimant.

 

Just as a word of warning to anyone reading this - take care using a Part 36 if you know nothing about it - seek advice, but it can be a useful tool in negotiation tactics.

[andrew1]

double post

[parveyb]

thank you all for taking the time out to read my thread and posting your ideas, your advice has been very valuable.

 

I am going to go with the letter mr lex has posted, basically i'm out the country on hols until 22/10 from tomorrow and i am going to use mr lex's letter post it tonight, to agree to their money offer side provided they remove the default. Hopefully they will accept and if not I can show the judge then I have tried to be reasonable and conclude the matter within the stay.

 

I'm taking my laptop on hols with me so i will try to post on my thread or keep up with any further suggestion that are posted!!

[car2403]

I may be totally out of line on this, but would making this a Part 36 Offer be in keeping here?

 

I may be wrong, but I don't think Part 36 works on Small Claims Track? Can't remember the reason why though...

 

Here it is; CPR Part 27.2

 

 

Extent to which other Parts apply

 

27.2

 

(1) The following Parts of these Rules do not apply to small claims –...

 

 

(g) Part 36 (offers to settle); and

 

 

[Mr lex]

Hi Parveyb,

 

The most important thing is you now go away and enjoy your Holiday.

You have someone at home to open your mail so you can update us of any developments.

 

Now go way and enjoy your break 8-)

 

Lex

 

ps. How did you send your letter by the way?

[the_shadow]

I may be wrong, but I don't think Part 36 works on Small Claims Track? Can't remember the reason why though...

 

Here it is; CPR Part 27.2

 

 

That is correct, generally due to the carrot and stick nature of the CPR 36 the stick (the costs) are not there to apply. However I believe PT and UK26 received a part36 offer and accepted it in the small claims court, also various other threads have had solicitors in the small claims offer part36 offers to the defendant.

 

Personally I would still make a part36 offer but an alternative is just to make a less formal settlement offer, reason being:-

 

Part 27.14 Small claims costs

(3)A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test

 

S.

[parveyb]

Lex I haven't posted it yet going to do it 1st thing in the morning recorded or normal 1st class? I'm thinking recorded.

[parveyb]

by the way there is no one at home to open the post until i get back home on sat 23rd oct. that why i thought i would give them until the 25th for a reply, which then i can tell the court of my directions and i'm sure the judge actually stayed the case until Friday 29th Oct, taking into account my holiday which i put in my allocation q'naire and is more than a 28 day stay.

[Mr lex]

OK, Parveyb,

 

Send it recorded, special delivery. I think they (the PO) call it 'Guaranteed next day now' !

[parveyb]

ok will do.

[parveyb]

Hi

 

Arrived back from holidays y'day to find the following letters from the court and cap

 

COURT LETTER:

 

Upon hearing the claimant in person, hearing the Counsel for the Defendant

 

IT IS ORDRED THAT

 

1. The claim is stayed for 28 days.

 

2. The matter be allocated to the small claims track

 

3. The parties to notify the court whether settlement has been achieved by 4pm 29th October 2010, and if not provide details of availability for the period 01/12/2010 to 31/03/2011.

 

4. The matter be referred back to District Judge for small claims track directions after 29th October 2010.

 

5. The small claims hearing shall not be listed before District Judge **** (this was this the judge I had at the allocation hearing with).

------------------------------------------------------------------------------------------------------------------------------------------------------

CAP 1 response to my proposed settlement letter:

 

 

Dear Mr *****

 

I work in cap 1’s legal department and have conduct of the above claim on behalf of rap 1. Your letter of 30 sep 10 has been passed to me deal with.

 

I have reviewed your claim, comprising of the following:

 

1. Default fees charged to your credit card account in the sum of £460

2. Associated interest in the sum of £83.22

3. Statutory interest at the rate of 8% per annum in the sum 0f £177.95

4. The court fee of £65 and

5. Removal of default from credit file

 

On a without admission of liability basis we have already refunded £751.91 in full settlement of your claim, this is for:

 

1. Default fees charged to your account in the sum of £460

2. Interest charged on those default fees of £48.96 (‘contractual interest’)

3. Statutory interest at the rate of 8% per annum in the sum of £177.95 as claimed, and

4. The court fee of £65 as a claimed

 

Our record show that the cheque sent of £751.91 was cashed on 22nd June 2010. (I sent this cheque back to them on the 02/07/2010 and this is stated on my thread!! Lying ****!! Going to ask for proof of this false accusation!!)

 

The amount we have refunded for default fees reflects the total amount if default fees added to your acc.

 

You have not explained the basis of claim for interest on default fees in the sum of £83.22. The total amount of purchase interest ever added to your account since the acc opening, which is interest added on your purchase, as well as default fees. You have not been charged £83.22 in purchase interest and it does not reflect you losses.

 

In addition you have mentioned that you intend ask the court for further interest. It is not clear on which basis you will be making this request. It is in our view that you have no further claim against cap 1 and that we are confident that you claim for further interest is unfounded.

 

As we have refunded the full amount of default fees added to your account, all the interest charged on the default fees, statutory interest on the default fees and interest and the court fee, we believe these elements to be resolved. The sum refunded already exceeds the amount which you are legally entitled to claim and as a result we believe your claim for any additional amounts will fail.

 

The only outstanding of your claim therefore is the information recorded on your credit file. For the reasons set out in paragraphs 13 to 17 of my witness statement dated 27/08/2010, we are unable to remove the default from your credit files, as the information reported to CRA must accurately reflect how you have managed your acc. The default has been applied correctly.

 

To reiterate, as a responsible lender, we have an obligation to ensure that the information we report to CRA is accurate and that it will not mislead future lenders. This practice is in accordance with the Consumer Credit Licence Capital One Holds, Data Protection principles and guidelines issued by the Information Commission and Consumer Credit Licence. We do not feel the default fees charged to your account caused you to default on your credit agreement. Our records show that between 10th August 2004 (which when the account was opened) and the 19th Sept 2005 (when the default was issued), you had borrowed a total of £326.85 comprising.

 

i. £191.63 purchase transactions

ii. £52 Cash Transactions

iii. £69.37 purchase interest and

iv. £13.85 cash interest if your

 

However, at date of default you had only repaid of £192.10. Accordingly, it is clear that the default fees did not cause you to default on your credit card. You had not raised any issues at the time with regard to default fees added to your account and on numerous occasions failed to make any payments towards your account.

 

The purpose of a default on a credit file is show that the relationship between the debtor and creditor has broken down. It is clear that the relationship between you and cap 1 had broken down. You made no payment to you acc after April 2005 and we have recorded this behaviour with the CRA’s. We believe the default recorded on your credit file is accurate and accurately reflects the way you have managed your account with cap 1.

 

Consequently, if you decide to pursue your claim through to a final hearing, we believe your claim to remove the default will fail. We believe that pursuing the claim will amount to unreasonable conduct and you will be at risk at paying our court costs incurred in defending your claim.

 

We therefore invite you to discontinue your claim by completing and returning the enclosed Notice of Discontinuance to *****county court (no form enclosed). If however you decide to pursue your claim further, please provide us with further details of elements of your claim that you consider to be outstanding and a full explanation as to why you believe thaty you are entitled to the remedy sought.

 

We reserve the right to draw this letter to the courts attention on the question of costs.

 

Yours sincerely

 

 

****** ****

 

 

SO WHAT IS MY NEXT MOVE?

[Mr lex]

Hi Parveyb,

 

First, we know you returned their offer of refund, you need to make that clear to miss whats her face.

 

You use this letter as part of your court bundle to prove at least one aspect of their defense is a lie !!

 

I think you are now at a stage to ring Cap1. You need to explain to miss xxxxx that you intend to use their untruth

in court and you will present their letter in front of the Judge.

 

You can also ask how can there be a default IF they have offered to refund the charges, default fees and all court costs.

 

I am thinking here a complaint to FOS is called for to substantiate your case, we all know FOS isn't the best of organizations, but the big companies don't like being on their most 'Whinged About' list. It did not harm my recent case for my son with HSBC.

 

Link is here :-

 

http://www.financial-ombudsman.org.uk/consumer/complaints.htm

 

but do have a read of this :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?243852-You-can-complain-about-the-service-you-are-receiving-from-the-Ombudsman-but-WARNING!

 

I am not to worried about costs against you yet, this now in small claims.

 

I would wecome others input here.....

 

Lex

Edited October 23, 2010 by Mr lex