Me v Cap one

[HadEnough]

I posted my letter giving two weeks and although I did ask if I could go straight to court I have decided to send asecond letter. My reasons are due to tge claim being just over 5000 (the small claims amount goes up in April) and im having an op so its better for me. I will be strict with response times though and I will prepare my Poc's in the mean time. Fingers crossed however I know they will take this as far as a court claim.

Edited March 5, 2013 by HadEnough
missed a bit

[HadEnough]

I have received the standard reply stating that they will look into my claim and get back to me within 10 weeks. They seem to have overlooked the fact that they have already through this stage.

I am going to send an LBA now and prepare my POC's. Off sick now so I have lots of time to sort this.

[citizenB]

Just proves they dont read letters, doesnt it ?

[HadEnough]

Ok at last I am up to filing an N1 at court. I have the POC's from this site to put on the form.

In the brief details of claim part what do I put?

[slick132]

Hi Hadenough,

 

Just seen CitB's alert for this, so looking in..............

 

What rate are you using for interest and is it the contractual rate or a nominal rate.

 

If you are claiming compound interest in restitution, I would not add 8% Statutory Interest as well. That could be seen, and argued against, as undue enrichment.

 

For your POC's, your need to list points relevant to mis-sold PPI. Shelley's BC *WON* thread that was mentioned was a credit card penalty charges claim. You can only use this as a guide for how to set out the points you want to make but you cannot use the same arguments. They're not relevant to PPI. Shelley's BC *WON* case is here - http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**

 

How far has your complaint got with the FOS, if it's still on-going.

 

[HadEnough]

Hi Hadenough,

 

Just seen CitB's alert for this, so looking in..............

 

What rate are you using for interest and is it the contractual rate or a nominal rate.

 

If you are claiming compound interest in restitution, I would not add 8% Statutory Interest as well. That could be seen, and argued against, as undue enrichment.

 

For your POC's, your need to list points relevant to mis-sold PPI. Shelley's BC *WON* thread that was mentioned was a credit card penalty charges claim. You can only use this as a guide for how to set out the points you want to make but you cannot use the same arguments. They're not relevant to PPI. Shelley's BC *WON* case is here - http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**

 

How far has your complaint got with the FOS, if it's still on-going.

 

 

Hi slick thanks for taking the time to help.

I have claimed interest at their purchase rate plus 8% that the courts would award when my claim is successful. Is this wrong?

I do have Poc's but I need to know what to put in the brief details of claim section...

[slick132]

Hi HE,

 

For the Brief Details of Claim :-

 

Money claim for return of penalty charges and associated interest charges applied to the Claimants credit card account by the Defendant on the basis of a mistake because they are either a penalty or because they are invalid under the Unfair Terms in Consumer Contracts Regulations 1999.

 

Have you used a site spreadsheet for the charges and interest.

 

[HadEnough]

Yes I did.

Thanks for the wording.

Just a quick question. Are PPI charges classed as penalties?

[slick132]

No, the two issues are very different.

 

Simply put, Penalty Charges applied to an a/c are unlawful and unenforceable because they are a fixed charge applied for any transgression, regardless of what that transgression actually cost the bank.

 

PPI is reclaimable because it was mis-sold in some way, or inappropriate.

 

[HadEnough]

Does that mean I just change the penalty charges to PPI in brief details paragraph?

[slick132]

Reclaiming penalty charges by court action is a common process and there is established case law to back up the contention that the penalties are unlawful. Each bank will deal with such reclaims differently.

 

For instance Barclaycard will repay penalties plus compound interest in restitution when you take them to court. They tend to agree to settle before a final court hearing

 

I have far less experience with CapitalOne reclaims but I believe they will defend and send a barrister to represent them on the day.

 

Reclaiming PPI with court action is far less common, the usual route being a complaint to the FOS.

 

If you take a PPI reclaim to court, it's down to you as the Claimant to prove your case, on the balance of probability (if it's on the Small Claims Track), to the judges satisfaction.

 

You can't use the same PoC's that you use for reclaiming penalty charges and your evidence would also be entirely different. If you take a case to court without adequate preparation, you will lose and may find you have to pay (some of) the Defendants' costs. Because they use legal representation, this can easily run into four figures.

 

[HadEnough]

I am using the ppi Poc's.

sorry I'm confused as to the brief details paragraph you gave me. So I shouldn't use this for this claim? If not what do I put?

I realise that fos is the usual route however capital one will only off me 2000 when in fact they owe much more.

I am self employed and even tried to claim on the ppi ins when I was off and was told I could not. I cancelled it then so I do have a genuine cause to reclaim.

I want all the money that I paid them back hence court action unfortunately.

[slick132]

Hi HE,

 

This is why we always try to keep one thread for one topic - to avoid PPI and penalty charge reclaims becoming confused. If you want to discuss the PPI aspect of this a/c in more detail, start a new thread for it in the PPI forum.

 

The Brief Details wording I used earlier were meant for a penalty chgs reclaim.

 

Re the Brief Details wording for a PPI reclaim, have a look in the PPI forum and, if you can't find what you need, ask on-thread.

 

I understand why you want your money back but I'm not sure steaming in with a court claim is the best option with PPI. I'm looking into this topic in more details with other Site Team and will come back asap.

 

[HadEnough]

This is only about ppi, thought it was in the right forum.

I have been in negotiations for 18minths with capital one and I've sent numerous letters stating my case and asking for what I am owed with the same response every time. They refuse to budge.

[slick132]

Sorry HE,

 

I now see the confusion is mine ! Your thread is mainly about PPI and it's already in the PPI forum, so ignore my post #63 above. The confusion arose because Shelley's thread was mentioned and that was ALL about reclaiming penalty charges.

 

The concern in taking a PPI case to court is the onus is on you to prove your case, to argue why you should get compound interest and why charges older than should not be Statute Barred. CapOne will pay a legal rep to counter your arguments in court.

 

Even though the Regulatory route of redress has no time limit, when you take your case to court, you'll have to argue this point.

 

Same goes for compound interest - the Regulatory route offers certain ways of calculating the redress but, to claim compound int't in court, you'll have to convince the judge that the basis you use is correct.

 

It's not enough to say, "They're not offering me enough and I know I'm due a greater refund." You need to prove your case with well-prepared evidence and confident presentation.

 

If you're ok with all this, then proceed. If you're not so sure, perhaps the Regulatory FOS route may take longer but it doesn't have the same risks.

[HadEnough]

I am concerned reading this however I am fine with going to court. I was told fos would only award me what I've already been offered. Can I ask for mediation first? I've read on other threads that they have been offered that. I know ill need to be prepared, as its £5100 and in small claims if I'm unsuccessful would there be any chance I might have to pay their costs? My understanding is that can't happen in l claims...

[slick132]

Hi HE,

 

Last night, I asked ims21 to drop in and offer his input on your case.

 

He's always busy but will, I'm sure stop by asap.

 

Edited June 9, 2013 by slick132

[ims21]

Hi

 

As I understand it you have received an offer of redress which is in accordance with the regulatory method of calculation. This is the figure that lenders are required to offer according the FSA (as it was) and on which fos "enforce".

 

In fact the regulatory award system is not too bad because it offers a refund of premiums, contractual interest on them and 8% compensation.

 

The thing you have going for you here is that the lender has made an offer and although the will use the expression "gesture of goodwill" and "without accepting liability" it is really an admission of mis-selling. Having said that, you may well still have to show your case for mis-selling to a court as part of the whole proceeding.

 

It is the interest that you appear to be unhappy with.

 

A couple of questions before we continue...

 

1. What is it that you are unhappy with exactly i.e. why do you feel that the interest is too low?

 

2. What level of interest do you wish to have repaid to you and on what principle do you base that claim for a higher rate?

 

If you are going for anything over and above what fos will award then the lender will certainly not budge with out a court fight but if you can answer the above two questions it would be useful. I ask them because it may well be that a judge will ask you at least these two questions.

[HadEnough]

Thanks for looking in so quickly.

In answer to your questions;

 

1. What is it that you are unhappy with exactly i.e. why do you feel that the interest is too low?

 

They have awarded me what aapears to be 8% interest on the ppi charges. They have and will not tell me the rate they have used but its the same figure as the restitition amount which they have said is 8%.

 

2. What level of interest do you wish to have repaid to you and on what principle do you base that claim for a higher rate?

 

I want contractual interest at the rate i was charged on purchases, etc. This makes the claim much more significant. I want this based on the fact that that is what they charged me on the PPI they applied to the account each month. I have a good case for mis-selling as I am self employed and i cancelled the PPI in 2005 when I attempted to claim and was refused due to my circumstances.

 

for your information the figures they sent me are:

£2095 (premiums £874.11, interest of £610.11, £636.10 8% interest)

[HadEnough]

I did use the CAG spreadsheets too.

[Old Cogger]

contractual interest on them and 8% compensatation!

 

contractual rate as per your statement i.e. 26.89% maybe and then then 8% on top

[Old Cogger]

Hi

 

As I understand it you have received an offer of redress which is in accordance with the regulatory method of calculation. This is the figure that lenders are required to offer according the FSA (as it was) and on which fos "enforce".

 

In fact the regulatory award system is not too bad because it offers a refund of premiums, contractual interest on them and 8% compensation.

 

The thing you have going for you here is that the lender has made an offer and although the will use the expression "gesture of goodwill" and "without accepting liability" it is really an admission of mis-selling. Having said that, you may well still have to show your case for mis-selling to a court as part of the whole proceeding.

 

It is the interest that you appear to be unhappy with.

 

A couple of questions before we continue...

 

1. What is it that you are unhappy with exactly i.e. why do you feel that the interest is too low?

 

2. What level of interest do you wish to have repaid to you and on what principle do you base that claim for a higher rate?

 

If you are going for anything over and above what fos will award then the lender will certainly not budge with out a court fight but if you can answer the above two questions it would be useful. I ask them because it may well be that a judge will ask you at least these two questions.

 

 

Re-read the post and you will get the gist or else you could be loosing out!

[ims21]

So it would seem from the figures you gave above that there is £874 for the premiums, contractual interest at the purchase rate of £610 and £636 for the 8% compensation.

 

I would guess that they have not sent you a detailed breakdown, premium by premium and if that is the case then you should get them to do so in order that you can check that the figures are in line with the regulatory guidelines.

 

Just for reference purposes, remember that on a credit card the redress offered by the regulators is....

 

1. Return of premiums.

 

2. Return of any contractual interest charged as a result of those premiums.

 

3. The account should be reconstructed with the above removed. Following that reconstruction, if the account shows a credit balance for any month, 8% simple interest is awarded on that credit balance for that month.

 

4. If the card has been paid off and closed, there will be a difference between the reconstructed balance and the balance paid off. 8% simple interest is awarded on that difference running from the date the account was paid up to the date of settlement of the PPI claim.

 

If you intend to fight in court for more than this amount, that is where the principle of restitution comes in. For example you having been deprived of your money and relieving the lender of the unjust profits it made on your money. The principle of restitution is based on the case law of Sempra Metals -v- Commissioners of Inland Revenue. When going back further than six years the it is S32(1)© of the Limitations Act 1980 on which you would rely and the case law of Kleinwort Benson -v- Lincoln City Council.

[maynie]

On page 2 you posted the calculation breakdown they sent you. Have you put that into a spreadsheet and used it to calculate how much contractual interest they are offering on each monthly payment?

[ims21]

On page 2 you posted the calculation breakdown they sent you. Have you put that into a spreadsheet and used it to calculate how much contractual interest they are offering on each monthly payment?

 

Oops...missed that...looking at it now