CapOne Case - Ive Started... CLAIM FORM NOW ISSUED By Capone ** SUCCESSFUL OUTCOME **

[mrbrooks]

Hi everyone, a quick update, considering yesterdays 'awkward' conversation with the chap from BC, we have today, wierdly, received some documentation...which makes yesterdays convo doubly odd...I could really do with some feedback here with regard to the convo, how BC behaved yesterday and now these letters...

 

Anyway, got this: [ATTACH=CONFIG]39780[/ATTACH] - which I am assuming, means, we can all assume, that CapOne are saying that they are not interested in what the FOS are going to say or indeed waiting for them to say it, because we have no case for PPI as far as they are concerned. Note the reference to claim pack, but no reference to the date that BC mentioned yesterday of 2nd Jan....

 

I also got this: [ATTACH]39779[/ATTACH] - which, appears to be the original application form/CCA, along with statements and a couple of previous letters. Much of this stuff was obtained in the SAR of Nov 2011, but am glad to see that BC have complied with our request. However, this again makes yesterdays convo a bit odd, considering what the guy said. Again note the reference to the claim pack, but no mention of the 'delay' bringin us to 2nd Jan...

 

OK, should I ignore the 'delay' and proceed to get the defence filed by 11th Dec, im really worried they are going to try to pull a fast one here, especially as they seem to contradict themselves in light of these letters and refuse to provide written confirmation of this so called 'delay'.

 

Thanks all...

 

mrbrooks

[mrbrooks]

Bump

[mrbrooks]

Hey everyone, just had yet another bizarre call, this time from the FOS, apparently, Capital One have told the FOS adjudicator that they are not aware of a court case pending and have requested proof...The adjudicator has said he was a little worried by CapOnes lack of insight into their own affairs...So he wanted my permission to send the claim form to them...He implied, that CapOne had implied, their DCA (BC) had acted on their own, I pointed out this almost certainly was utter rubbish as BC has provided documents that are clearly from CapOne and I also have letters from BC, making direct references to their communications with their client with regards to PPI, CPR31.14 and Merger Doctrine...So either CapOne are lying, or BC is acting on his own...

 

On another note, the adjudicator told me that they don't calculate the compound interest in regard to PPI, i would have to address this in court.

 

Also any thoughts on the prev posts up here???

 

mrbrooks

[AndyOrch]

Good Morning Mr Brooks.

 

I personally would just submit your defence and on time.BC does not like defences and refers to his abacus on receipt of one.

 

 

Regards

 

Andy

[mrbrooks]

Hi andy, I Agree, I already decided this was the safest approach as clearly neither BC nor CapOne can be trusted, the only issue as I stated above, is what to say...

 

I read some stuff regards s.78 and reckon that this is a non starter to include, however I wondered about s.61 being used and also, including the unlawful charges as a counter claim and considering including/mentioning the PPI as a counter claim...

 

Thoughts?

 

mrbrooks

[AndyOrch]

I am not aware of the finer details of your predicament or the amounts involved Mr B but a simple way to thwart this menace is to simply submit a defence.Pt 20 counter claims must be carefully considered..not only for the merit but if it will push the matter into the next Track.

If a PT 20 was added and it retained it below the 5K threshold then that is something to consider.

 

Regards

 

Andy

[mrbrooks]

andy hi, what is PT.20? More importantly, how am I to use it?

 

Current amount being cliamed by CapOne:

1. £4964.88
   
2. Plus - £228.52 claimed interest pursuant to s.69
   
3. £190.00 Court Fee
   
4. £100.00 Solicitor Fee
   
5. Total: £5483.40
   

 

The unlawful charges amount to about £750-£800, the PPI without the compound interest is around £3000.00-£3500.00

 

So if the unlawful charges are taken into account that leaves roughly £4164, I dont know about this s.69 interest stuff so am not sure what happens with that, then if the PPI is claimable that brings the liability down to around £1000 as far as i can tell...

 

Beyond this I am at a loss as what to put and present...thus the request for input from the wider CAG...

 

mrbrooks

Edited December 5, 2012 by mrbrooks

[citizenB]

Part 20 claim is a counter claim. I think anyone adding this separately on their defence is expected to pay for the privilige.

 

Whereas, if you were to include in your defence that the monies claimed is not accurate due to the addition of unlawful charges and mis sold PPI.. that is not charged.

 

I am sure someone will correct me if I am wrong

 

s69 interest is a statutory interest, which I understand cannot be claimed on a claim that is based on an agreement under the Consumer credit Act, again if I am incorrect, then someone will no doubt let you know.

[mrbrooks]

Hi CitizenB, thanks for the reply, in terms of 'legal technicalities' what would be the difference between us counter-claiming for the unlawful charges and PPI and stating them as a defence in the respect that say when unlawful charges and PPI are taken into account, then the outstanding amount cliamed by CapOne is reduced to XXX and therefore the claim is incorrect?

 

I hope that makes sense???

 

mrbrooks

 

--EDIT--

 

With regards to s.69 interest are you saying that they may be charging for this when they are not supposed to???

[AndyOrch]

Hi Mr B

 

Yes PT 20 Counter Claim CPR20 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20 .

 

So you are in Fast Track anyway so yes a Defence/ Counter Claim may be the way to progress this. There is a fee subject to the amount counter claimed.

 

Section 69 statuary interest is allowed so don't challenge that.It is at the courts discretion to whether this is allowed and for what period providing there is not already interest being charged vis a the T&Cs.

 

Regards

 

Andy

[mrbrooks]

Hi andy, with regards to,

Section 69 statuary interest is allowed so don't challenge that.It is at the courts discretion to whether this is allowed and for what period providing there is not already interest being charged vis a the T&Cs.

The actual claim amount before Fees is under 5K are they allowed to use the Fees to bump the value over the 5k in order make a claim for s.69 interest then?

 

And I am assuming that if this is the case, then allocation of the track is decided after the full amount, including any fees and other additional claims, such as s.69, are added? In our case bringing us over 5K?

 

And I'm assuming with regard to the difference between straight defence and counter-claim is ultimately that a CC cost money and a straight defence doesn't, other than that (In our case at least) there is no difference to the statements being made...

 

mrbrooks

Edited December 5, 2012 by mrbrooks

[AndyOrch]

Sec 69 can be in the P.o.C and calculated amount but not added to the claim amount...its at the courts discretion to apply it within the debt amount claimed.They can include Court Fee and Sol fee therefore in your case you are still over 5K hence this will be FT.

 

You submit a standard defence and tag a PT 20 Claim on.

 

Andy

[mrbrooks]

Hi Andy, again thanks for the reply, and I have to apologise, I'm lost here, this is where I'm becoming befuddled ...

 

Ok re 'You submit a standard defence' using, saying what? I am not sure what angle I am supposed to present this defence, like I said earlier, im pretty sure from what I've read that a defence using s.78 is pretty much out of the question, but have read some stuff re s.61, but again Im really not sure which way to take this and what to state.

 

Then re 'tag a PT 20 Claim on' again for what? I assume we are talking about the unlawful charges here, but is there anything else I should add to the counter-claim?

 

Apologies for the density of my head re this...

 

mrbrooks

[AndyOrch]

As stated I don't know the finer details of the claim... obviously there are problems otherwise you would not defend and admit.The counter claim is for anything within the dispute PPi unfair charges...interest.Like CB states you can either refer to them within the defence and try to mitigate within their claim.The alternative is to PT 20 Counter Claim (this will be the amount you disagree with and will become a separate claim form you (Defendant PT 20 Claimant).

 

Its all explained within the CPR link I have provided for you.If you are struggling to understand the process I would suggest a read here :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?356814-The-Process-of-Litigation-Court-Claims.

 

If you are still struggling to draft a defence then I would advocate you admit and try to agree a repayment plan with the claimant..you will get a CCJ with this route though.

 

Regards

 

Andy

[mrbrooks]

Hi Andy, thanks for the link, I did have a read, I will read some other stuff on how to present, and just hope someone can give me some grounding on how to argue I feel the unfair charges and PPI are enough to cancel out the debt, that's the main thrust of my position.

 

I am not willing to admit anything to them, they have bullied and lied their way this far, if we give in now I can see them just having a little party patting themselves on the back for winning another dirty victory and getting away with it...

 

I suppose in light of lack of wider input at the moment and especially the time now available (5 days) I may just have to talk with a solicitor...

 

Thanks again...

 

mrbrooks

[AndyOrch]

It does not require a Solicitor....look at their Particulars...agree or refute...argue or accept.I will guide you but simply don't have the time to draft every poster a defence.

 

Here is an example of a Defence /Pt 20 CC

 

Defence

 

The Defendant admits that in or about XX/XXX/XXXX (he/she) entered into an agreement with (Claimant) and which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

The particulars of claim are vague and do not provide sufficient detail to enable the defendant to plead effectivley or at all. By way of example the claimant has failed to confirm the date of Agreement/Account numbers upon which the cause of action is based.

 

The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof. The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.Notwithstanding the matters pleaded above, the claimant must under section 87(1)also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

Prior to the issue of the action the claimant was requested to disclose documents relating to the alleged debt and/or agreement. The claimant failed and/or refused so to do.

 

The documents described above were the subject of a request pursuant to Section 78 ofthe Consumer Credit Act 1974 and CPR 18 request

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate

 

It is denied that Capital One served a default notice upon the Defendant, alternative a default notice complying with the provisions of section 88 of The Consumer Credit Act 1974.

 

It is admitted and avered that since the termination identified above,capital One have made demand of the Defendant for the payment of money the subject of this claim.

 

Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

Further and in any event, by reason of the matters set out above and the requirements of section 87(1) of the Act, the steps taken by Capital One hereof were steps which Capital One were not entitled to take.

 

Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970

 

In the circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant.The Claimant’s claim to be entitled to £xxxxxxx to interest or to any other sum is denied.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

 

 

 

 

 

Part 20 Claim

 

5. The defendant/Part 20 claimant intends to claim sums paid to the claimant /Part 20 defendant in relation to penalty Charges Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions.

 

6.The defendant/Part 20 claimant refers to As a consequence of the claimants/Part 20 defendants failure and/or refusal to provide documents, the defendant/Part 20 claimant is unable to plead the Part 20 claim with particularity.

 

And the defendant/Part 20 claimant claims:-

 

i) An order requiring the claimant/Part 20 defendant to disclose statements of account covering the entire period of the alleged agreement and a copy of the alleged agreement.

 

ii) XX XXX XXXX unfair charges (expand on reasoning)

iii) Interest pursuant to Section 69 of the County Courts act 1984 at the rate of 8% per annum until judgment or further order or such other sum as the court thinks fit.

 

Regards

 

Andy

[mrbrooks]

Thanks for the input Andy, I really do appreciate, but to be fair, I never asked for someone to draft a defence, I just required a few more pointers and to be fair again, I did ask more than a week ago, and actually a couple of weeks ago I mentioned preparing for this day and someone told me to wait till the papers form BC arrived, but of course they didn't until yesterday...I also bumped the thread with no response a couple of days back...though I understand everyone is busy you will i hope at least forgive my panic in the light of the way BC have given me the run around, the day of presenting the defence is on the horizon and I am still clueless...

 

And please understand, I mean offence with the above, but my lack of knowledge in not in whether I need to argue or accept but more in what technicality I am arguing with and against...

 

It is ok though, I have been reading some stuff, and I figure if I get it wrong the court will put me right...

 

Thanks again for the input, it has been very useful in clearing up a few things, such a tracks and other little questions i had...

 

mrbrooks

Edited December 5, 2012 by mrbrooks

[mrbrooks]

Andy want to say, this post with the draft is awesome, I have been reading again some of the points and sections referred to, this has given me much more insight into what is required, I was struggling with the detail particularly in reference to which parts of the act to quote/mention...and of course leave out...

 

I am just reading some more of points you have mentioned in the brief. but can clarify these particular points that you mention:

 

section 87(1) - Need for default notice.: CapOne issued the Notice of Default Served under section 78 (1) on 5/1/2012, giving 28 days for full payment. So I assume CapOne have complied with this requirement and should just leave this out of the draft?

 

section 76(1) Duty to give notice before taking certain action. - Is this related to the claim? CapOne/BC have given notice of court action, on 29th October, informing us that they will proceed with court action on the 5th November 2012, and on the 8th of November they isseud a letter informing us that litigation had proceeded. So again as they have complied, I assume this is best left out? If this is not relating to the court action then what am I looking for here?

 

section 98(1) Duty to give notice of termination (non-default cases). - Again CapOne did give notice of termination, I have a statement of default, dated 7/2/2012 that states as point 1 that 'We have terminated your account', so again I assume this section has been legally complied with and therefore I should leave out this reference?

 

I am just reading the stuff re CPR18 and will post up some more tomorrow...

 

Thanks all...

 

mrbrooks

[mrbrooks]

Hi everyone, after harrasing BC all week I have finally got the agreement to 15.5, I have sent BC a letter thanking them for the correspondence (dont want to be rude and ungrateful haha)...

 

My question is, how do I now file this with the court? Do I need to get a letter out today/tomorrow or can I file this on line???I had a quick look but im not sure where to start the process...

 

Thanks

 

mrbrooks

[AndyOrch]

Now that you have conformation attach that to a letter to Northampton stating that an extension has been agreed pursuant to CPR 15.5 and that your defence will be submitted by xxth xxxx xxxx.

 

Regards

 

Andy

[mrbrooks]

Andy hi, (or anyone on the know) do I send the letter Northampton CCBC via signed for delivery? Or is std first class ok???

 

And who do I address it to, Dear CCBC???

 

thanks

 

mrbrooks

[AndyOrch]

Send recorded delivery and address to the claims manager referencing your claim number.

[mrbrooks]

Thanks andy, done...will get it in the post tonight/first thing tomorrow...

[citizenB]

Thanks andy, done...will get it in the post tonight/first thing tomorrow...

 

Can I suggest that you also telephone the court and advise that this has indeed been agreed and that the letter is in the post to them.

[mrbrooks]

Hi CitizenB,

Can I suggest that you also telephone the court and advise that this has indeed been agreed and that the letter is in the post to them.

I will do this first thing Monday...thanks for the pointer...I did wonder with the response being so late coming if I had time but the phone call should help it along...

 

mrbrooks