voyager9 vs capital one ** Partial Win **

[voyager9]

ok i have sent the following letter following their t & c`s sent to me

 

sent by fax and recorded delivery

 

Dear Sir/Madam,

 

CARD/ACCOUNT NUMBER: ################.

 

Thank you for your letter dated 30 may 2007.

However you have left me a little confused, in your letter you state you have enclosed details of the terms and conditions for the above account as per my recent enquiry but fail to say what enquiry.

I have made three requests to you

• A consumer credit act 1974 request as per letter attached.

• A subject access request as per letter attached.

• A letter to Ellie Renshaw which included a request in accordance with civil procedure rules 4.6©, a copy of the document that you will be relying on as proof that a properly executed agreement, including the terms and conditions that you say I agreed to, complying in all respects with the form and content requirements of the consumer credit act 1974 and was signed by myself in respect of this account.

• In the same letter I also requested full disclosure of all information held on me under the subject access request made on 28/03/2007 but you may leave out the charges as this has already been provided to me.
  
• I also sent a notice pursuant to section 10 of the data protection act 1998 which you have failed to action.
  
• I also sent a schedule of charges.

As you can see from the wording on all the letters attached, the terms and conditions only form a part of what I have requested on all 3 points above.

In the cca 1974 request, I requested:

a) A true signed copy of the original executed agreement complying in all respects with the form and content requirements of the consumer credit act 1974. (not supplied to me)

b) Any document referred to in the said agreement. (current terms and conditions supplied not those in force when account opened)

c) A statement of account. (not supplied to me)

d) A deed of assignment if the debt had been sold. (not supplied to me or informed if debt had not been sold)

In the subject access request, I requested:

a) A comprehensive list of transactions and charges, which you have provided.

b) As per my letter faxed 18th may 2007 I then required full disclosure of all information held about the above account excluding (a) above. (not supplied to me)

A request in accordance with CPR 4.6©, I required:

a) The document you will be relying on as proof that a properly executed agreement, signed by myself and complying in all respects with the form and content requirements of the consumer credit act 1974 in respect of the above account. (not supplied to me)

b) The terms and conditions that you say I agreed to, the terms and conditions you have sent me do not conform to my request in any way, these terms and conditions may be in force now however they were not in force when I opened the above account. (not supplied to me)

So in effect you have failed to comply with any of my requests as stated above and as you know I have commenced litigation and expect all information requested within 14 days.

I also note that you have still not informed me that your settlement offer of £214 has been taken out of the account as this was declined, besides that, right from my initial letter requesting refund of charges I stated that all payments were to be in the form of a cheque payable to myself and I expect confirmation that this has been done as per my request within 14 days.

Yours faithfully,

voyager9

 

 

p.s. red writings meant to be there lol

 

voyager9:)

 

[voyager9]

cap1 acknowledged 15/6 so lets wait and see

[sowerby17]

will be watching your threadas i sent n1 on wed 20th this week but as my account is still open i did not get gogw put into account so i just refused it

[rogerbanana]

watching with interest mine was acknowledged on the 18th June

[voyager9]

update :

 

have received letter and defence using the incorrect interest amount argument and correct amount paid in full statement.

 

now the only payment i have physically had is £34.52 no other payment yet.

 

now i issued a very extensine poc and the only allegation cap1 have answered is that they deny charges are unlawfull, they have neither admitted/denied or asked claimant to prove any other allegation including claiments right to charge compounded contractrual interest so therefore under cpr rules everyone of the allegations is admitted therefore no prospect of success so i have todat filed an application for summary judgement dont know if it will work but we will see!!

 

heres the application wording if anyone wants to try this aproach but it is not yet proved and tested so use only on the understanding i accept no responsibility for any advice offered or given as i am not a barristeror lawer lol

 

 

Application Notice

[Ask for this to be heard at a hearing]

Order sought

(1) The Defendants Defence be Struck Out

(2) Summary Judgement be granted in favour of the Claimant, as sought in the Particulars of Claim.

Because

(1) The Defendants Defence discloses no reasonable grounds for defending the claim.

(2) The Defendants Defence does not adequately deal with most of the pertinent grounds contained within the Particulars of Claim.

(3) The Defendants Defence has no reasonable prospect of success.

(4) Allowing the Defendant to proceed with its frivolous and vexatious Defence

Part C

I wish to rely on the following evidence in support of this application:

(1) All abbreviations/references remain as defined in the Particulars of Claim and the Reply to Defence unless it is stated otherwise below.

(2) The Defence discloses no reasonable grounds for defending this claim.

(3) The Defence does not comply with CPR 16.5(1), in that the Defence has failed to deny, admit or required the claimant to prove, all each and every allegation in the Particulars of Claim. In these circumstances the Defendant is taken to admit to all allegations that have not been covered by the Defence.

(4) The only allegation the Defence has answered is that the Claimant contends that the charges are unlawful; therefore according to the rules of CPR 16.5(3) all other allegations are admitted.

(5) The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide the Defendant’s reasons for doing so and doesn’t provide an alternative version of events. Furthermore, it is the case of the Claimant that the Defendant cannot deny an allegation without providing an alternative explanation/view on the matter in question.

(6) The Defence does not deny that no contract existed between the parties hereto purporting to allow the Defendant to levy the Charges to the Account. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 16.5(3) (b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. There being no contract allowing the Defendant to levy the Charges is the Claimant’s primary basis of claim. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all,

(7) The Defence does not deny that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the UTCCR. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3) (b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.

(8) The Defence does not deny that the Claimant is entitled to charge the Defendant interest at its own published rate of interest, by virtue of the terms and conditions. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3) (b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.

(9) The Defence states that its basis of defence is that the correct amount has been paid in full, this statement is untrue, the only payment received by the Claimant is a cheque for £34.52 which was received on 30th June 2007, the Claimant has received no other payments or proof in the way of a statement that any other amount has been paid onto the account despite requests, also all offers of payment other than full amount of claim has been rejected.

(10) The Defence is both frivolous and vexatious. The Defendant has had many cases concerning its default charges raised against it by consumers (sample list attached). These cases are usually settled for the full amount just before the court trial date. This ensures that the Defendant isn’t required to justify its charging regime but does result in a lot of wasted court time, considering these matters could easily be settled for the full amount when the claims are initially issued (or even at the letter before action stage).

(11) Accordingly, this court should seek to give effect to its overriding objective and strike out the Defence at this early stage so that no more valuable court resources are wasted in dealing with a claim, where the defence to which has absolutely no prospect of success and the Defendant will almost certainly settle for the full amount anyway.

(12) Particular reference is made to paragraph 10 of the Claimant’s Reply to the Defence.

(13) In view of the above averments and the Statement of Claim the Defence should be struck out and summary judgement granted in favour of the Claimant, as sought.

[voyager9]

and heres my reply to the defence

 

 

REPLY TO DEFENCE

________________________

THE DEFENCE IN GENERAL

1. The Claimant is unable to fully reply, or even completely comprehend, the Defendant’s Defence, which was served upon the Claimant via Newark County Court and dated 25th June 2007 (hereinafter referred to as the ‘Defence”). Therefore, until the Defendant better particularises its Defence the Claimant cannot fully reply to it. The Claimant reserves her right to plead further when, and if the, Defendant rectifies the Defence (should it be allowed to by virtue of a relevant statute). Nothing in this paragraph, Reply or the Particulars of Claim (hereinafter referred to as the “PoC”) should be construed as giving the Defendant the right to plead further at a later date. Nothing in this paragraph, Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

2. Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

3. The Claimant’s PoC and Statement of Case are repeated, with the following additions, deletions, replacements, amendments, clarifications, deletions, etc. For the avoidance of any doubt, all references remain as defined in the PoC, unless it is stated otherwise in this Reply.

4. The entirety of the Defence is denied, save as it is otherwise pled, or implied, by the Claimant hereinafter.

SPECIFIC REBUTTALS TO THE DEFENCE

5. Paragraph 1 of the Defence is admitted.

6. Paragraph 2 of the Defence is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. It was denied in paragraph 16(b) of the PoC that a contract existed between the parties hereto, which purported to allow the Defendant to levy the charges to the Account. In the PoC, the Claimant called upon the Defendant to show that a contract existed. It is almost axiomatic that the Defendant, should it wish to rely upon the existence of such a contract as it implies in paragraph 2 of its Defence, must show that such a contract existed.

7. Paragraph 3 and 4 of the Defence (Defendant’s contention that the Claimants interest amounts are incorrect ) is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub paragraphs below.

a. The Claimant’s case is that the Defence seems to assume that the Claimants interest calculations are referring to the amount of interest the Defendant charged the Claimant, this assumption is incorrect and the Claimant refers the defendant back to paragraphs 62 and 63 of the PoC which clearly states that the Claimant is charging the Defendant interest on money owed and not claiming it back as stated in Defence, therefore Claimants interest calculations are correct.

d. Nothing in this paragraph, Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

8. Paragraph 5 of the Defence (Defendant’s contention that that the Defendant has refunded £214 to the Claimant on £30 April 2007) are neither admitted or denied, insofar as the Defendant, despite frequent requests has failed to provide evidence in the way of a statement that the stated amount had been refunded to the account, further to this the Claimant has rejected the offer of said amount on several occasions which the Defendant has apparently ignored. The only payment received from the Defendant is a cheque for £34.52 which was received by the Claimant on the 30th June 2007.

9. Paragraph 7 of the Defence (Defendant’s contention that correct amount has been paid in full) is denied in its entirety. The Claimant is somewhat amused with this paragraph, how does a cheque for £34.52 constitute paid in full.

THIS CASE IN GENERAL

10. The Defence should be struck out. The Claimant’s reasons for making this allegation are detailed below.

a. The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide an alternative version of events.

b. The Defence does not comply with CPR 16.5(1), in that the defence must state precisely which allegations are admitted, denied, not admitted or denied but requires the claimant to prove.

b. For the avoidance of any and all doubt, the Claimant’s primary basis of argument is that no contract ever existed between the parties hereto purporting to allow the Defendant to levy the Charges against the account. The Defendant hasn’t denied this allegation, dealt with this allegation or met the criteria of CPR 16.5(3)(b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As such no reasonable grounds are disclosed for defending this claim and the court should seek to give effect to its overriding objective, as detailed in CPR 1.1, 1.2 and 1.4, and strike out the Defence.

c. By virtue of CPR 16.5(5) the Defendant is taken to admit certain allegations contained within the PoC. In particular, the Defendant is taken to admit:

i. that no contract ever existed between the parties hereto purporting to allow the Defendant to levy the charges to the account.

ii. that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the IJTCCR.

iii. that the description of the Charges in paragraph 18(a) of the PoC are true.

iv. that the Claimant is entitled to charge the Defendant interest at its own published rate of interest, by virtue of the terms and conditions.

v. that the Defendant should remove all adverse information on the Claimants credit files.

d. The Defence:

i. does not disclose any reasonable grounds for defending this Claim,

ii. Does not adequately deal with many of the material allegations contained within the PoC (see in particular 10.c.i of this reply); and

iii. Accordingly it should be struck out

I believe the facts contained in this reply to be true.

SIGNED

[voyager9]

have today received and order from court,

 

it is ordered that the claimants application is listed as follows:

 

tuesday 18th september at 2.00 o clock at newark county court (hearing time estimate :30 mins)

 

basically it is a hearing to deal with my application to have defence struck out and summary judgement granted.

 

basically i have the following questions :

 

does the judge normally grant the hearing if he doesnt think you have a case, ie by being given a date is there a moderate/good/or excellant chance of defence being struck out?

 

what will i need to take with me to the hearing as it is not the full hearing? am already thinking about a list of cases cap1 have settled with c.i and list of cases of purchase interest charged to account, if anyone knows where i can locate such a list i would appreciate it?

 

have also sent aq in and received cap1`s aq will these still go before the judge and the draft directions/suggested lincoln order be considered?

 

apreciate any advice!

 

voyager9

[voyager9]

had hearing today and as i expected, case stayed pending out come of test case didnt even hear application,

 

1 of the direction is for defence to ask court for direction within 3 months of conclusion of test case.

 

will type full order up once got it.

 

voyager9

[voyager9]

update. on the 6th april applied to have stay lifted and asked for order for court to strike defence out of its own motion as abuse of process.

 

phoned court today stay has been lifted but order wasnt granted and claim has been allocated small claims track and listed for a 2 hour hearing date as yet to be arranged.

 

not looking forward to it given last experience.

 

so i suppose i need to start preparing my bundles

 

voyager9

[voyager9]

right i think i need a quick update on what has been occuring, i have been away from this for quite a while and think a few things have changed.

 

they say that they have paid all charges and interest i paid to them + 8% interest however part of the charges was paid straight off the account, i kept asking for proof of this but they never supplied it. so it is my argument that they have not paid ME all the charges and have decided off their own back the rate of interest.

but and its a big but i was claiming contractual interest under mutuality and recipracy before the halliday case came to light and they couldnt supply an agreement under a cca request either but still apparent used some of the charges to pay debt off (about £190)

 

am i stuffed

 

no agreement

how can i change from mutuality to sempra at this late stage(aq is already in and i dont understand sempra?)

because i am disputing having received all the charges will judge even take the charges into account?

 

voyager9

[steven4064]

You can change your POC by submitting a form N244 (see HMCS website) - it will cost ou £65.

 

Sempra is explained in my interest tutorial - see my signature

 

Sempra should also give you an authorityt o recaim interest only - ie after the charges have been repaid.

[voyager9]

thanks steven when i attach the new poc do i need to attach updated schedules with the accumalated interest to date or leave all figures as they were on origional poc?

[steven4064]

you can change the schedule at the same time. It will be as if you had started the claim again - they will get the chance to submit a new defence too

[voyager9]

ah ok steven thanks

[voyager9]

steven could i bother you again,

 

i have rewritten poc ,it now includes updated amounts etc and new arguments for interest however my mind is now numb and i cannot think of what to put on n244 as a reason for amending.

 

could you help please?

[steven4064]

put updated schedule of charges and correction to basis of interest claim

[voyager9]

right all done ready to take to court on monday thank steven for your help

 

voyager9

[steven4064]

Did I say you need to do a revised N1 as well?

 

 

 

 

 

 

 

 

 

 

You need to do a revised N1 as well

[voyager9]

no steven but i figured you would hav to becuase amounts have changed:D

but i question, you said they will have a chance to file a defence again , it might be a daft question but can they default on that and i get default judgement? like at the start of a claim?

 

prob not just me being thick lol:o

[steven4064]

in principle I guess they could

[voyager9]

can this new method of claiming cci be used on current accounts steven, if so i could do with amending another claim that is stayed?

[steven4064]

It's the same principle, so yes. I would wait until the stay is lifted though before amending the claim

[voyager9]

ok thanks

 

voyager

[voyager9]

right have today received a court date with directions

 

court date : 17th june 2008

bundles to be in by : 03 june 2008.

 

will this be enough time to amend my poc and get bundles ready.

 

if they dont accept amended poc can i still put sempra in court bundle and witness statement, will judge allow that argument this way.

 

god now i am panicking never been this far before.

[steven4064]

If you put in an amendment you will probably find they put he case back - they will need to, if only to give the other side time to respond.