Higgzy vs Cap1 - Advice appreciated

[Higgzy]

I know lol. decisions decisions? ummmmm Ill sleep on it and see what other people write tomorrow. Im off now to bed, heads spinning lol. If you got a thread going pm me a link m8 and ill follow. Speak 2moro most prob. Cheers for all ur help m8.

 

........

good thinking... lower the 29.9 to get it under. will have alook tomorow.

Edited August 27, 2010 by Higgzy
g

[Bigdebtor]

Higgsy

 

Thanks for your pm's. I really don't think you need much more help - you seem well on top of things!

 

I agree with Letsdothis. Start again and claim for the last 6 years only including compound interest to get to around £4.5-£4.8 k of a claim. You are in almost exactly situation with Cr*p One as I am. They offerd me about £630 plus £100 in interest - but I calculated they owed me about £800 in charges plus over £3k in interest! That's why I knew that the 29.9% compounded monthly would make a huge difference to your claim too.

 

When I refused their offer they even put a DCA on me for the £500 or so balance showing when I stopped paying them. I have told them to take me to court.

 

I really need to put my *rse in gear and take THEM to court - but have been a bit busy.

 

So - go for the amount due for just the last 6 years just now - you'll win. Then insist they repair your credit rating FULLY with all CRA's. If they don't then go for the older charges and interest as well -and tell the Judge they won't fix your CRA status - even although your defaults were composed entirely of unfair default charges and interest.

 

Good luck - keep us all posted.

 

BD

[Old Cogger]

You O.K. now Higgzy, much better idea of it all now, and have heard other peoples expreiances, and got much better figures to claim? hope all goes well for you.

[Higgzy]

Higgsy

 

Thanks for your pm's. I really don't think you need much more help - you seem well on top of things!

 

I agree with Letsdothis. Start again and claim for the last 6 years only including compound interest to get to around £4.5-£4.8 k of a claim. You are in almost exactly situation with Cr*p One as I am. They offerd me about £630 plus £100 in interest - but I calculated they owed me about £800 in charges plus over £3k in interest! That's why I knew that the 29.9% compounded monthly would make a huge difference to your claim too.

 

When I refused their offer they even put a DCA on me for the £500 or so balance showing when I stopped paying them. I have told them to take me to court.

 

I really need to put my *rse in gear and take THEM to court - but have been a bit busy.

 

So - go for the amount due for just the last 6 years just now - you'll win. Then insist they repair your credit rating FULLY with all CRA's. If they don't then go for the older charges and interest as well -and tell the Judge they won't fix your CRA status - even although your defaults were composed entirely of unfair default charges and interest.

 

Good luck - keep us all posted.

 

BD

 

Hi BD

 

Thanks for your advise. More input the better. I'll rebuild the speadsheet and do a reply letter over the weekend. I had 10 charges refunded back in 2005. Someone suggested removing these and let crap one tell me i had them refunded. My options are:

 

Only go back 6 yrs but there could be a chance the claim could be lowered due to the refunds.

 

Go back further than the 6rs quoting S32 of the limition act 1980 and include the refunds.

 

I have amended the speadsheet with the latter and it comes in at just under 5k. See here compound interest charges speadsheet final WITH REFUNDS.xls

 

I think the latter would be alot easier, what do you all think?

 

Just have to work on a reply letter now.

 

Cheers

Edited August 27, 2010 by Higgzy

[Higgzy]

You O.K. now Higgzy, much better idea of it all now, and have heard other peoples expreiances, and got much better figures to claim? hope all goes well for you.

 

Yeah thanks Mike. Much better idea now. Everyone has been really helpful, thankyou.

Hopefully i can get the ball rolling again next week.

[Bigdebtor]

Hi BD

 

Thanks for your advise. More input the better. I'll rebuild the speadsheet and do a reply letter over the weekend. I had 10 charges refunded back in 2005. Someone suggested removing these and let crap one tell me i had them refunded. My options are:

 

Only go back 6 yrs but there could be a chance the claim could be lowered due to the refunds.

 

Go back further than the 6rs quoting S32 of the limition act 1980 and include the refunds.

 

IF THIS KEEPS YOU WITH SMALL CLAIMS LIMITS THEN I WOULD GO FOR THIS - CONTRACTUAL INTEREST OVER MORE YEARS WILL ADD UP TO MORE. IT ALSO SHOWS YOU'RE HONEST BY NOT CLAIMING AGAIN FOR CHARGES PREVIOUSLY REPAID.

I PRESUME YOU DIDN'T ACCEPT REFUNDS AS F&F SETTLEMENT OF ALL CHARGES? ANYWAY LET THEM ARGUE AND PROVE THIS. IT WOULD ONLY AFFECT OLDER (pre 2005) CHARGES - NOT NEWER ONES AFTER LAST REFUND.

 

BD

 

I have amended the speadsheet with the latter and it comes in at just under 5k. See here [ATTACH]21299[/ATTACH]

 

I think the latter would be alot easier, what do you all think?

 

YES BD.

 

Just have to work on a reply letter now.

 

Cheers

 

SEE REPLIES ABOVE

 

Good luck!

 

BD

[Higgzy]

Hi BD

 

Will go down route of claiming including refunds then. Takes the claim down to £4980 (approx) inc 8% stat. The previous refunds was not F&F settlement, i didnt sign anything and were sorted over the phone with an accounts manager far away in india.

 

Do you know if there is any templates on here for declining 1st offer, just to start me off, im hopeless writing letters

 

Cheers

[Bigdebtor]

Higgsy

 

I think there are suitable examples by The Shadow (and added to by me) in another Capital One thread. If you search for my or the Shadow's posts from about Feb-April 2010 you should get something. If not, let me know.

 

BD

[Higgzy]

This is what i have come up with so far. Any input is appreciated. Cheers.

 

Dear Sir/Madam

Thank you for your letter dated 20 August 2010 offering me a refund of £650 plus interest of £111.52 in respect of default sums and interest charged to the above account in the last 6 years. I respectfully decline this offer.

I note your comments regarding the Limitations Act 1980 and I would like to draw your attention to section 32 of the Act as outlined below:

 

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from 2004 when you first begun to impose such unfair default charges.

 

As previously stated I believe I am entitled to have such default sums refunded in their entirety right back to the initial default charge in May 2004 as I do not accept the charges imposed reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate.

I note your comments regarding the default removal. You state the default on my credit file was not added due to default sums and was due to the account being behind with payments.

Your letter states, the account defaulted on 16th July 2007. The balance at that time purely consisted of unlawful default charges and interest relating to this. The default charges applied prior to this date total £720 with the balance on the account at the time the default notice being served being £703. It is quite clear that if these unlawful default charges and relating interest had not been applied to the account then there would have been no balance on the 16th July 2007 when you state the account defaulted. You also mention it was due to numerous missed payments. Again, if the unlawful default charges and interest were not applied to the account there would have been no payments to make! It is because of these unlawful default charges and relating interest that the account spiralled out of control.

As stated in my previous letter, In addition to full payment of the sum mentioned below, I require that you remove the default entry. Please note that mere correction or amendment to the default entrys will not be acceptable.

I had previously calculated the amount of charges together with S69 CCA 1982 8% statuary interest accruing from the imposition of the first default charge in May 2004 until the last charge on 13th May 2006. I have now recalculated these based on today’s date of 28th August 2010 with the addition of contractual interest.

I now request that you refund to me all charges imposed on this account totalling £720.00, together with contractual interest of £2768.67 and 8% statuary interest the court will award of £1490.62. Making the total currently claimed £4979.29. Please see the enclosed schedule.

 

Interest has been calculated at the contractual rates as shown on your statements and will continue to be compounded monthly as per your standard practice and will continue to accrue on a daily basis until the required payment in full as settlement has been received from you.

 

Please repay this money in full taking £703 to clear the remaining balance and remove all default notices and late payments makers within 14 days. If this is not done, please accept this letter as official notification that I will begin a court claim against you for the total amount, plus fees, costs and damages for being unable to get credit due to the default wrongly entered against me due to your unlawful charges and relating interest.

I look forward to a full response to this letter within the 14 days

 

 

Yours faithfully,

[Old Cogger]

Nice one Higgzy start the ball rolling.

[Bigdebtor]

This is what i have come up with so far. Any input is appreciated. Cheers.

 

Dear Sir/Madam

 

Thank you for your letter dated 20 August 2010 offering me a refund of £650 plus interest of £111.52 in respect of default sums and interest charged to the above account in the last 6 years. I respectfully decline this offer.

 

I note your comments regarding the Limitations Act 1980 and I would like to draw your attention to section 32 of the Act as outlined below:

 

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from 2004 when you first begun to impose such unfair default charges.

 

As previously stated I believe I am entitled to have such default sums refunded in their entirety right back to the initial default charge in May 2004 as I do not accept the charges imposed reflect the true cost to Capital One Bank (Europe) plc and are unfair and disproportionate.

 

I now request that you refund to me all charges imposed on this account totalling £720.00, together with contractual interest of £2768.67 (at the contractual rates shown on your statements, compounded monthly) together with the 8% statuary interest the court will award of £1490.62 - making the total currently claimed £4979.29. Please see the enclosed schedule.

 

Please refund £4276.29 being the amount claimed less a deduction of £703 to clear the remaining balance and remove all default notices and late payments makers within 14 days. If this is not done, please accept this letter as official notification that I will begin a court claim against you.

 

I look forward to a full response to this letter within the 14 days

 

 

Yours faithfully,

 

Higgsy

 

You are trying to fight two battles at once.

 

I would split them into two campaigns

1. Get your money back plus ionterst.

2. Only after you're successful then tackle the fact that the only reason you were in default was the unfair charges as there was no excess balance attributable to spending, cash withdrawals or balance transfers.

 

I have edited your letter to take out the bit regarding point 2 at this stage.

 

If you wanted a faster easier fight, you may want to consider not asking for the 8% statutory interest if they settle by return, and tell them you WILL go for this AS WELL if they insist on going to Court (or settle after Court proceedings or any preliminary activites have commenced). I'm not sure if the amount claimed will be deemed to be £4.2k (after deducting £703) or £4.9k. Perhaps anoyther CAGGER will know. g

 

You are also in danger of going over the £5k threshold with only one more month's interest added. You might want to take out the bit about the interest continuing to accrue, an dclaiming other costs, damages etc. - so you stay at £4.9k (assuming you'll need to or choose to push for the 8% too).

 

I think you could claim for damages as a separate action - assuming this is your only black mark with CRA's? No sense alerting them to this at this stage.

 

Incidentally I would take out all the exact figures - just edit your posts and put in £XXXX.XX - so you won't be identified by any Cr*p One guest comparing your posts with teh letter they'll get soon.

 

It's your call - but the above is what i would now do.

 

BTW I really don't think they'll settle out of court - but at least you will be seen to be reasonable and doing everything you can to settle without "troubling" the Court. Cr*p One will be seen to be the awkward ones, using their size and intransigence to deny you your rights.

 

Good luck

 

BD

Edited August 30, 2010 by Bigdebtor

[Higgzy]

Hello everyone, 18days have passed with last letter and still no reply. Can anyone help out with filing a claim at court. I really only need help with the POC. Thanks.

[Bigdebtor]

Higgzy

 

I can't help at all - never done it (although I should be getting off my backside an ddoing exactly that with Cap One myself!).

 

It might be an idea to go into a relevant busy and active thread in the legal forum and just post a link to your thread here asking them to link into your thread and help. Alternatively have you read through other Cap one threads to see if theinfo is already there just to pick it up and put into your own POC?

In any case once you have got your own POC put together you should ask for help in a legal thread - just to ensure nothing vital is wrong or missing.

 

Hope this helps

 

BD

[Higgzy]

Hi BD, thanks for replying. Ill have a read on the other threads later. Do you think its worth hanging on tho as they have take 3-4 weeks to reply with previous letters?

[Bigdebtor]

I don't think a formal LBA now would do any harm - and give them a specific date (say 1 Oct?) to pay up or else - and then follow through - no bluffing.

 

BD

[Higgzy]

Hi guys and gals...... following on from the discussion in September, i have issued court papers with a poc. They have untill 4pm tomorrow to respond. If they do not respond what are the next steps and what does it involve?

 

Regards

Higgzy

[Bigdebtor]

Good for you Higgsy!

 

Sorry - I'm not up on what happens now - but I'm followng your case with great interest - personal, statutory and contractual!

 

Best of luck and looking forward to hear they've paid up - which is what I expect the'll do at eleventh hour.

 

BD

[Old Cogger]

They usually do pay up eleventh hour it would seem.

[Higgzy]

Good for you Higgsy!

 

Sorry - I'm not up on what happens now - but I'm followng your case with great interest - personal, statutory and contractual!

 

Best of luck and looking forward to hear they've paid up - which is what I expect the'll do at eleventh hour.

 

BD

 

Thanks BD, i have been a bit delayed with birth of baby and house move but got the ball rolling 2 weeks ago. I have rang the court this morning who said if they havent responded by Thursday lunchtime, i need to go in Friday with the bottom part of the Notice of Issue. Not really sure what happens from there.

 

Will keep you posted.

 

Higgs

[Higgzy]

They usually do pay up eleventh hour it would seem.

 

Hi Mike

 

Fingers crossed!

 

Higgs

[Old Cogger]

Yep Higgzy legs as well

[Higgzy]

Yep Higgzy legs as well

 

lol

 

do you know what happens next and timescale?

[Old Cogger]

Sorry Higgzy, maybe somebody can advise yoiu next step time scale? Mike

[Higgzy]

Quick update and advice needed.............. Cap1 had till 5th Dec to respond to the court issue. They didnt respond in time and the court issued a notice of judgement on the 6th December ordering them to pay the full amount claimed.

But i received a letter from cap1 dated 2nd December on the weekend which is attached below. Any ideas on what i should do now? Higgs

[Old Cogger]

Bump