Carter claimform - old Cap1 card **SETTLED BY TOMLIN**

[AndyOrch]

You can submit a counterclaim by way of a AN.I would make this sharpish as the fact that they have not payed the AQ fee would preempt that they may make application foe Summary Judgment in the near future.

 

Andy

[emmaf01]

What is an AN and how do I do that? Can I just add a counterclaim and would the 8% be from the date the card was ended?

 

I was thinking they might try for a summary judgment and thought this would come with their AQ, but nothing there. Yet. How will I get notification if they try for that? Will the court send me notification as BC have tried every sneaky trick so far!

[AndyOrch]

What is an AN and how do I do that? Application Notice N244 Can I just add a counterclaim and would the 8% be from the date the card was ended? No its until judgment received

I was thinking they might try for a summary judgment and thought this would come with their AQ, but nothing there.Its normally under applications on the AQ Yet. How will I get notification if they try for that?Sometimes you dont but its considered civil to send you a copy of their application Will the court send me notification should as BC have tried every sneaky trick so far!

 

 

Regards

 

Andy

[emmaf01]

There isn't anything attached to the AQ- no applications- but I will get husband to check with the court on Monday. Just in case Mr Carter is pulling another fast one.

 

So on the N244 I can make an application for a counterclaim? I didn't know that. Sometimes I feel like I'm just stumbling round in the dark on all this.

 

We should get fee remission as we're on Income Support so that's good. Should I include with my AQ a request for how the charges are calculated or is that pushing my luck? Should I ask to amend my defence, though I've already stated about the charges and the s69 interest BC have added? Just to remove the request for documentation.

[emmaf01]

Also a quick query. We know we will be called as witnesses in an upcoming court case, but have not got the date of the trial through yet. Can I just say on the AQ that there will be some days in the next few months where we will not be available but will give them the exact dates when we are informed by the CPS? Or is that too vague?

[AndyOrch]

There isn't anything attached to the AQ- no applications- but I will get husband to check with the court on Monday.And check if they have submitted their AQ also Just in case Mr Carter is pulling another fast one.

 

So on the N244 I can make an application for a counterclaim? Yes its the only way apart from starting a fresh claim to submit a counterclaim once you have entered a defence I didn't know that. Sometimes I feel like I'm just stumbling round in the dark on all this.

 

We should get fee remission as we're on Income Support so that's good. Should I include with my AQ Have you not submitted your AQ yet? a request for how the charges are calculated or is that pushing my luck? By all means ask for justification and proof Should I ask to amend my defence, though I've already stated about the charges and the s69 interest BC have added? Just to remove the request for documentation.

I personally would let your defence stand there is nothing wrong with submitting an holding defence (BTW its not called an Embarrassed Defence) providing it contains substance and the right to amend.

Regards

Andy

 

 

[AndyOrch]

Also a quick query. We know we will be called as witnesses in an upcoming court case, but have not got the date of the trial through yet. Can I just say on the AQ that there will be some days in the next few months where we will not be available but will give them the exact dates when we are informed by the CPS? Or is that too vague?

 

Simply state there are dates you will be unavailable due to court attendence yet to be confirmed.You will confirm when you have clarification

[emmaf01]

Our AQ is going in the middle of next week. I think I'll just tick the boxes-

 

Yes to mediation- even though BC has ticked no

No to change location of hearing

Yes to small claims track

No witnesses

No experts

Yes to dates unavailable- thanks for that Andy

Other information- if I add draft directions like those in the Bank/card charges cases? For information about costs involved in charges for credit cards- how much it costs them to send out a template letter automatically on the computer system, etc and Draft Direction as in charges cases?

 

Does that sound like a plan? Or am urinating in a force ten gale.

[AndyOrch]

You need to submit your CC firstly so that the AQ connects with the case.You can then complete the AQ to marry your defence and CC. The Claimant is then aware of the requests within the AQ as it stands they will not comply because your request are not compatible with your defence and may come across as a phishing trip.

 

Regards

 

Andy

[grrrrrr]

You could always just work out a figure you are happy to pay, and offer terms you are happy with in full and final settlement ... if it goes to court you'll have a bugger of a time trying to prise the various levels of interest & charges off the balance. If you just make an offer based on your best guess, and copy Cap1 in on it, they may just accept it and go away?

 

I know in my recent small claims battle (as claimant) I would have taken 2/3 of the debt happily to save the hassle & I wasn't paying costs that a magistrate had the option not to award!

 

[emmaf01]

I'm sorry I haven't been on here for a couple of days. My health is not at it's best right now and stress makes it worse. Add to that, the pills make my head fuzzy- like trying to function after a few stiff whiskeys.

 

We would love to settle this with BC. Unfortunately they have shown no inclination to be reasonable. In fact their subterfuge and silliness have been annoying.

 

We would be quite happy to get them to take away all the charges and interest and then give us an affordable payment plan. Between everything going on in our lives at the moment, the last thing we needed was this. However we are not going to lie down and get shafted by these guys.

 

Our position is reasonable. We only stopped paying Cap1 when they added charges after we had already taken them to court to remove them. We disputed, they ignored. If I hadn't been so ill, we would have proceeded back to court. But my husband was focused on caring for me and (almost before we knew it) then the account was closed. We told them repeatedly the account was in dispute- nothing. They passed to a DCA who we told the account was in dispute, they bogged off. The next thing we have a court claim landing on our mat.

 

So I think I'm going to just tick the boxes on the AQ and get it in tomorrow. Do I need to write up an explanation of our position/case/defence to include with this? Or can I just tick the boxes for now? There doesn't seem to be any argument from either side about this going to small claims track.

 

Then I can put together our claim against Cap1 for charges over the next few days and get it into court asap. Then we can connect them.

[emmaf01]

So I need to know if I should include a statement of case. BC haven't by the looks of things, though I wouldn't put it past them to do one but not include it in their copy to us.

 

Briefly it would say that in December 20** my husband took out the credit card with Capital One.

 

In September 2008 he discovered that they had added charges. He got disputed these charges and started a court claim against Cap1. They refunded these charges in April 2009. We stated to them we would dispute any additional charges they applied to the account.

 

In July 2009 they again added a charge to the account. We asked them to remove this. They did not and continued to add additional charges each month from them. We disputed these charges and refused to pay them until the charges were removed. My husband was my carer and due to his caring responsibilities at this time, he was unable to launch another court claim against Capital One to remove these charges. Though on the numerous times Capital One contacted him, he informed them that the charges were disputed and if they removed the charges he would bring the account payments up to date.

 

In March 2010 they sent a default notice and in April 2010 they closed the account, even though it was in dispute.

 

In July 2010 we were contacted by a DCA (Fredricksons). When we explained the account was in dispute they said they would investigate. The next we heard from BC threatening court and then receiving a court claim from them in September 2010.

 

We dispute that we owe the amount claimed by BC as the amount includes penalties charges which are unlawful at Common Law, under the Unfair Contract Terms Act 1977 and the UTCCR 1999. Also that the claimant has added s69 interest which they are not entitled to where the claim is in relation to a debt regulated by the CCA 1974.

Is it a good idea to add a statement of case? Or do I hand in the AQ as it is?

[emmaf01]

We got those charges removed but when they added more the account went back into dispute.

 

Finally the account was terminated and we are dealing with a court claim for the balance, including charges we didn't have time to start a court claim for.

 

Don't put off a dispute and a court claim for charges! Now we are battling them in court and we could have avoided this I feel.

[emmaf01]

And do I need to put in an application to amend my defence? I included in my defence the three main points I want to rely on as well as the lack of documents. They are-

 

1) Vague POC

 

This was their POC-

The claimant's claim is for the balance due under an agreement which is now all due and payable.

The defendant agreed to pay monthly installments under account number ************** but has failed to do so.

And the claimant claims the sum of *****

The claimant also claims interest thereon pursuant to s69 county court act 1984 limited to one year to the date hereof a the rate of 8% per annum amounting to ****.

 

2) Unlawful charges

 

3) Their addition of s69 interest even though they are not allowed to on a debt relating to an agreement covered by the CCA 1974.

 

So if I include with my AQ a possible statement of case(?) and a list of the disputed charges, would that be ok.

 

I only have tomorrow to hand this in, so I am completely floundering.

 

Can someone please help?

[AndyOrch]

Hi Emma

 

Yes you can include your statement as part of the "other section"

If the above points were mentioned in your original defence then i dont see a need to submit an amended defence as nothing particular as changed or materialised.

 

Regards

 

Andy

[emmaf01]

Thanks, Andy. I thought about making sure I had all the points we would be relying on in the defence to try to negate the problems of a holding defence solely due to lack of documents. I'm glad that you agree that now this means I don't need to submit an amended defence.

 

I'm searching to find other people's examples for our statement of case. Just for syntax and tone, if you know what I mean.

 

I just don't trust BC and want to make sure any judge gets the facts that we do not want to avoid any money we do owe, we just don't agree with the charges added and the blatant attempt of getting s 69 interest. All we want is a revised amount and a payment plan which we can pay from our benefits. And to guard against attempts to secure the debt to our home, though the house does not belong to my husband so I don't think they could do that.

[emmaf01]

AQ completed. I've just written in the other information box that to clarify the defence the amount claimed includes penalty charges and the s69 interest which shouldn't be included with agreements regulated by the Consumer Credit Act 1974. And that we would be happy to enter into mediation to resolve this matter. I wish we get brownie points for keeping it short and sweet for the judge.

[AndyOrch]

Emma

 

What have your referred to with regards to your Counter Claim?

 

Andy

[emmaf01]

As we are still in the process of getting the claim set up, I haven't mentioned anything as yet. Just clarified the penalty charges are an issue and the s69 interest they are trying for.

 

Due to having to get the AQ in today, I'm still doing the N1 for the charges, though i have managed to get the amounts sorted, just not the interest as yet.

 

Apparently BC was right not to include a fee with their AQ as the claim is for less than £1,500. So they don't need to pay according to the court officer. Pity, I was disappointed. The court couldn't confirm whether they have received BC's AQ.

[wilchy]

Just thought I would pop in to say I got a letter for an allocation hearing yesterday so I beat you to it for some kind of reply Heres my new thread. Havent a clue what I need?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?285272-wilchy-vs-EGG-Bryan-Carter.-Notice-of-Allocation-or-Listing-Hearing-Advice-Pls

[wilchy]

Just thought I would pop in to say I got a letter for an allocation hearing yesterday so I beat you to it for some kind of reply Heres my new thread. Havent a clue what I need?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?285272-wilchy-vs-EGG-Bryan-Carter.-Notice-of-Allocation-or-Listing-Hearing-Advice-Pls

[emmaf01]

News today that Cap1 have dumped Bryan Carter as their solicitor and brought it back to their in-house solicitors.

 

Maybe we might get someone we can actually negotiate with now, instead of BC and their policy of ignoring us. Cripes, all we want them to do is take all the charges off and sort out a payment plan for what we think we owe.

[emmaf01]

We have heard from someone from Cap1 legal department who rang in response to our offer. They seem happy to agree, though we have asked for them to confirm everything in writing, naturally.

 

Provisionally, disputed charges removed from balance and s69 interest. The rest to be paid off at a rate we can afford.

 

If anyone has any tips for issues we should also be considering? I remember someone mentioning a "Tomlin Order" but I can't remember if that is what we are looking at right now? We want to avoid the court stuff if possible, but we don't want to be slyly stitched up with this!

 

The payment we have offered means that the balance would be paid off within 24 months. How do we make sure they don't try to attach any charging order to our house or start adding interest?

 

We want to make sure if we sign something it doesn't come back to bite us. I know we aren't dealing with BC anymore but it is scary.

 

We have a provisional date on 4th April for a pre-hearing meeting at the court.

[AndyOrch]

Hi Emma if you are prepared to accept a TO,it needs to be drafted along these lines.

 

IN THE XXXXXXXXXXXXX county court CLAIM NO: XXXXXXXX

 

Between Claimant

 

 

Claimant

 

and

 

 

XXXXXXXXXXX Defendant

 

 

 

 

Tomlin Order

 

 

Upon the parties having agreed terms of settlement

 

 

BY CONSENT IT IS ORDERED THAT:

 

 

1. All further proceedings in this action shall be stayed upon the terms set out in the

the attached schedule,except for the purpose of carrying such terms into effect.

 

2. Each party shall have liberty to apply to the court if the other party does not give

effect to the terms set out in the schedule.

 

3.No order for costs.

 

 

Dated ......................... .......

 

We consent to the making of an order in the above terms

 

 

......................... .................

Sols for the Claimant

 

 

 

......................... .................

 

XXXXXXXXXX Defendant

 

 

 

 

 

 

 

 

 

 

SCHEDULE

 

 

1. The Defendant shall pay to the Claimant the sum of £XXXXXX in Full and final

settlement of this claim

 

2. No charges will accrue on the settlement sum

 

3. The Defendant will pay to the Claimant on or before xx xxxxx 2010 the sum of

£XX.00 followed by payments of £XX.00 on or before the xxth of each month and every

month thereafter until the balance has been paid in full.

 

4. If payment is not made on the due date the Claimant shall give notice in writing of such a

default to the Defendant and if payment is not made within 14 days from the date of such

notice the Claimant shall be at liberty to apply to lift the stay and proceed with the claim.

5.The amount of the monthly instalment payment shall be reviewed at 12 monthly intervals.The defendant shall co-operate

with the Claimant on such review by providing the Claimant with such information about her assets income and expenditure,

as the Claimant shall reasonably request.

 

6.if following any review the Claimant and Defendant agree a new monthly instalment amount, the new monthly instalment shall become payable under

paragraph 3,with effect from the next instalment date.

 

7.If following any review, either the Claimant or the Defendant considers a new monthly instalment amount should be payable but cannot agree this with

the other party, either party shall be at liberty to apply to the Court for the Court to determine the monthly instalment payable and thereafter the stay

and settlement contained in this schedule do continue.

 

 

Thats how you want the TO laid out and content

 

Andy

[emmaf01]

Andy you are a life saver! That's exactly what I needed to see.

 

We haven't received anything in writing from them yet and we said we wouldn't agree to anything until we had it in writing- due to being lied to and messed around so much by BC.

 

We said (pointedly) in our letter suggesting terms that this was an offer we had put to BC months ago, but received no response. No point in not putting the boot in to BC whenever possible.