Mrs.SS v Cap One - reclaim of Credit Card Charges

[Still_surviving]

I had a CCJ against Nat West as part of a separate charges reclaim and they were VERY keen to get it removed

[moneyproblem]

seeing as Cap One have made no contact, and it is seemingly impossible to get email/telephone contact details of their legal department.

 

I got this from their defense paperwork, which was sent to me, try these details and see if it is of any help.

 

Zsuzsi Padgett

Legal Specialist (Non Solicitor)

Capital One (Europe) Plc

 

[email protected] | tel: 0115 843 8419 | fax: 0115 843 6483

[Still_surviving]

mp

 

Many thanks for that

 

That ladies name appears on my defence paperwork as well but there are no contact details. Will send an email to try and see whats happening - if nothing else they owe me a response to my court bundle & draft directions.

[moneyproblem]

SS, I am glad I could help in some way it is the least I can do. If those don't work then try these I found while rummaging through old capital one threads ([email protected]) http://www.consumeractiongroup.co.uk/forum/showthread.php?88645-Wendy-Star...capital-One-Legal-Dept-Fone-Number

[slick132]

The banks have hundreds, if not thousands, of CCJ's against them. However, they try to avoid them being registered and certainly try to get them removed. If you get a CCJ against a bank, you'll almost certainly be paid by them unless they appeal.

 

To SS - I hope the contact details prove useful in giving the bank a chance to settle before court.

 

Otherwise, good luck next week.

 

[bustthematrix]

so many Banks etc have files & files of CCJs against them

Sometimes, this is purely due to banks' huge size and inefficiency! They may, believe it or not, actually not know that some of these CCJs exist, or the claimant who got the CCJ has simply left it like that without pressing for enforcement, which is the whole point of getting a CCJ.

[Still_surviving]

For all of you thinking that Cap One will just 'cave in' please remember what I said previously about it not being guaranteed...

 

We have received a court bundle today from them, so they are certainly intent on taking this to the wire. Please please get your preparations organised.

 

I will post further when Ive dissected the witness statement....to be honest, the rest just looks like bumph - T&Cs, application forms etc. However, we received it 3 days after it was due, and court date is wednesday.

[moneyproblem]

Thanks SS for keeping us up to date, I am only in need of a WS (some help would be appreciated) and I am after a good summary for two test cases and then these should complete my bundle and ready for print. If you could trow any info my way I would be more than grateful.

 

Also did you email that person from capital one, any feed back from them, just curious. Probably doesn't matter now as you have received their bundle.

[Still_surviving]

Yes I did email that person (twice in fact) but received no response.

 

Funnily enough, its the same person whose witness statement I will be reading carefully tomorrow.

 

If you dont mind, I dont want to share my WS around until after my court hearing, as to be honest, if it proves to be a flop, I wouldnt want others to suffer because of me.

[moneyproblem]

Ok I see, well post their WS up if anything.

 

I understand and appreciate that not a problem, I did remember you did say that about the WS, I can wait, I doubt it will be a flop though . I will wait.

 

Do you have summaries for both Sempra vs IRC and Kleinwort Benson Ltd v Lincoln City Council? I have been searching the net for a very good summary and I am still at the moment.If you don't mind PMing those I would be grateful .

 

I am wishing you the best for Wednesday! I will be here eagerly waiting for te good news and for tips as to how I should go about mine also . All the best again for Wednesday.

[moneyproblem]

SS, I notice in your footer you have won two card refund back, did those went to court also? Just curious that is all .

[Still_surviving]

mp

 

Yes and no....

 

I received a full refund of charges plus some decent interest from Aqua, however I didnt chance my arm there as members of the Halifax group are getting a name for defending vigorously and retaining some serious legal muscle.

 

I took Natwest to court and won with compound interest, but perhaps mainly coz their legal representatives were erm....crap. They forgot to defend, so I got judgement by default. From then on it was a question of haggling / getting the money out of them. Theres a thread on the Natwest forums somewhere. Even with a judgement it was quite stressful as they try to convince you they will easily get it set aside.

[moneyproblem]

NP

 

Thanks for the insight .

[sillysow]

Still Surviving , good luck for tomorrow - we have a hearing with them in Sept - after they had been lapssidasical about the whole court process, they had extension after extension - never known anything quite like it!

[bustthematrix]

We have received a court bundle today from them, so they are certainly intent on taking this to the wire. Please please get your preparations organised.

Hmmnn, this is interesting. Why would they go through the trouble and expense at this level for such low amounts?

 

The legal brains on these threads should look further into this.

 

'Praying' you all the best SS.

[Still_surviving]

Well Ive just spent the morning going over the WS submitted by Cap One. To me it is absolutely full of holes and inaccuracies but it remains to be seen whether the judge will agree.

 

The absolute crux of the matter is they say 'Default Sums have already been held as not being penalties in Common Law' and they quote the OFT case that the banks won in the supreme court. Now we all know that case related to specifically Bank Current Accounts NOT credit cards. Lets hope the judge is clued up on this and not easily led by a smooth barrister.

[ims21]

Hi SS

 

Just popped in to say Good Luck for tomorrow

 

Regards

 

ims

[bustthematrix]

The absolute crux of the matter is they say 'Default Sums have already been held as not being penalties in Common Law' and they quote the OFT case that the banks won in the supreme court. Now we all know that case related to specifically Bank Current Accounts NOT credit cards. Lets hope the judge is clued up on this and not easily led by a smooth barrister.

SS

Have you been able to devise a well worded rebuttal of this particular assertion? Is/are there any on CAG? If this is what they're pinning their hopes on, it's worth putting heads together to come up with a strong argument against it. It's one thing us lot knowing the SC doesn't apply to non-current accounts but smooth talking barristers have demonstrated jedi-like powers over some judges before. I've also read somewhere else on CAG not too long ago that the SC ruling has/is being used by mortgage lenders to back mortgage arrears charges as well.

 

Are the CAG mods aware of this 'new tactic' though? That lenders are now using this argument to defend credit card charges reclaim actions? If so, a strong direct rebuttal is needed, and possibly an update to all the relevant POC templates!

imo

[lasek22uk]

Folks,

 

Good Luck today...

 

 

Lasek

[Still_surviving]

Well guys.....I lost

 

Everyone here MUST now expect Cap One to defend these cases thoroughly if you are going for older charges.

 

They retained the services of a London EC4 barrister, who was extremely efficient and knew Consumer Credit Law backwards.

 

In case you think I may have slipped up, the judge actually said I had prepared one of the best court bundles he had seen this year, and my

arguing of the points I wanted to make was done most admirably.

 

However:

 

Do not expect Cap One to pay anything over six years old. They are convinced they can now overturn the provisions of the Limitations Act 1980 32.1c with legal argument and this judge certainly agreed. If you choose to use the Kleinwort Benson case now....you will get a very detailed rebuttal.

 

I very very nearly got the judge to go my way....but then he seemed to just fold and find for Cap One.

 

They are also using the OFT v Abbey National test case as concrete proof that default sums cannot be assessed as penalty. Yes yes yes I know the case didn not apply to credit cards (must have said that in court three times) but they now assert that s6.2 of the UTCCR 1999 enables the two to be linked.

 

Well....I lost but Im not gutted. The whole experience was not unpleasant (though a little dull, as the judge talked so slowly for the transcriber)

 

if your case contains charges before and after six years old, expect them to pay back the newer charges when they file their defence, then tackle you head on for the older stuff.

 

 

Sorry guys....but I really didnt let you down. I could not have argued any better for a litigant in person.

[ims21]

Hi SS

 

Just to say that I'm really sorry about the outcome for you today...its clear that you have put a lot of work into this.

 

I'm curious to know how they got around S32 though.....do you recall any detail or the arguments put forward?

 

Best regards

 

ims

[Still_surviving]

Yes I have their argument here....

 

Basically they are alleging Kleinwort Benson clearly relates to mistake in law which was rectified by a subsequent change in law. If you allege that payment of the charges was a mistake in law, they will counter by saying the OFT review in April 2006 was not a change in law, but simply a 3rd parties interpretation of the law. The judge very strongly agreed with this.

 

Having seen their argument ahead of time, i tried strongly to argue that payment of charges was a mistake of fact, not law - as this is discussed in Kleinwort as well. The judge was giving serious consideration to this for quite some time, and I thought he was going to agree, but ultimately he decided the whole of Kleinwort related to a mistake in law, and thus could not be used to support my argument for postponement of the limitation period

 

As you can see....it is now no longer possible to just cite a crucial case like this, you must assume that Cap One will be looking to pick it pieces, and will use the personnel they need to do so.

[Still_surviving]

By the way, Im now quite chilled out after all this is out of the way. Slick132 will confirm just how much effort was put into this, and the pressure I felt under. However, I honestly beleive I did the very best I could have done as a LIP, but when these guys bring out the heavy professionals, you are really up against it from the start.

 

I must also point out that if anyone is intending to push their case into court, you simply MUST put in 100% effort. Do not forget that even in the small claims court, if the judge thinks the case was without merit, or very poorly prepared and a waste of court time, you can still get some costs awarded against you....

 

We simply must bury this idea now that Cap One will just cave in.

[ims21]

I'm grateful to you SS.

 

There have been a couple of losses reported in the forums lately and it appears that the banks are fighting back with even more vigour at present.

 

As you say, claimants need to be aware of these counter arguments and can no longer take the view that they will cave in before the hearing.

 

As I say, I am sorry to hear of the outcome and hopefully the points you make will help others in the future.

 

My best wishes to you and Mrs SS

 

ims

[moneyproblem]

I am sorry for the outcome of your case SS, I know you are not gutted but I am!

 

My thought of the following you mentioned.....,

 

s6.2

6.—(1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–

 

(a)to the definition of the main subject matter of the contract, or

(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

 

^^^^ This is what we now need to gather some legal arguments against, as from what I understand they have used the above to weave themselves into the same category as the Banks (current account ruling). Without thorough arguments and further laws for the above then clearly the above surely would rule out us using Kleinwort vs Lincoln City Council to claim charges beyond the 6yrs limitation act and also that they are paid in mistake.