Judgment & Beyond ~ Budgie Vs Capital One

[HaliMac]

Re: Budgie Vs Capital One

Budgie

One or two initial observations:

As ever, your legal and technical knowledge is undoubted. You have definitely missed your calling! However I'd really question the premise of this letter, not the content:

• I think first of all you should ask yourself a big question - why are you sending it? Why not deal with them in court? Do you feel that by not responding and copying in the court that you are somehow going to lose any advantage? I'd keep my powder dry if at all possible, if I were you. I could have this completely wrong, but it looks like you're pre-empting the hearing. Have a think about this before you fire it off.

..and if you do decide to send it:

• While I know just how pi**ed off one can get with these people (and you do know I know, after reading my thread and helping me!), it all looks a little too emotive - I'd avoid the remarks such 'devious and misleading letter' and 'how many more times do I have to....', etc. I think this sort of thing tends to add more heat than light. Stick to the facts and take the emotion out of it, no matter how justified you think you are, or how angry. She's just an office worker doing her job.
  
  For an example of where I think you should be tone-wise, check out my last letter to HFX

• If you do decide to proceed, I note that you're making a one or two requests for information. In my experience (I'm a Project Manager for my sins!), when several requests are spread out in a letter or memo, things inevitably get forgotten, or 'conveniently' omitted. I'd have a short summary checklist at the end, detailing what you require by return.

That's it for now - hope it helps!

Mac

[Budgie]

Re: Budgie Vs Capital One

Hi Halimac,

Thanks for your comments.

You can probably see from my earlier comments that I am aware that I do not need to actually respond to their letter. Everything is proceeding as planned via the Court process.

Their letter is a devisive and misleading missive, presumably sent to me only as a gesture, from their point of view I am sure it was more intended as an effort to mislead and beguile the Judge handling my claim. With that in mind I do feel that it needs to be responded to, if only to ensure that the Judge is able to see that I have responded and am aware of their gameplay. I am sure the Judge is quite capable of interpreting thier intentions. I have also taken into account that the Judge will, on the 18th June, have to make a decision regarding the application notice I have submitted regarding throwing out of the defence and summary judgment. I therefore see no harm in slipping in a few "tasters" and "reminders" at this stage.

As with anything I usually tend to write things down as they come into my head and then revisit and fine tune. I now therefore tend to agree with you regarding removal of certain comments which may be considered emotive and will redraft the letter with that in mind.

Good point regarding the summary action list at the end of the letter, although I have also included these requests in my Draft Order. I feel it beneficial to also do so in this response letter as the requests neatly countercact the oblique points they are trying to make.

Thanks once again.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

You're welcome.

[Budgie]

Re: Budgie Vs Capital One

Updated draft version !!


Dear Rachael Howey,

I am writing with reference to your letter dated xx/xx/xxxx.

I understand that you have sent a copy of the referenced letter to the Kingston Upon Thames County Court.

This claim is currently proceeding through proceeding through the Court system and you will be aware that a hearing has been scheduled for xx/xx/xxxx to hear my application to have the defence thrown out. A copy of this letter has also been sent to the Court for filing with my claim.


Regarding the paragraph entitled “Your Claim”

Here you have basically restated your understanding of the claim. I refer you to the PoC which fully details my claim.

Regarding the paragraph entitled “Payment”

You state that the account defaulted on xx/xx/xxxx with a balance of £5xx.
I sent Capital One a SAR on xx/xx/xxxx. Capital One supplied some of the requested information via mail with an accompanying letter dated xx/xx/xxxx. The information supplied only covered transactions up to xx/xx/xxxx, at which time I believe the balance on the Account was £3xx. Would you therefore supply copies of Account statements covering the period from xx/xx/xxxx to the present date and in particular supply details of how the balance on the account increased from £3xx to £5xx. Also, the account administration paperwork shows that the Account was sold by Capital One to another Company. Please supply full details of this account sale and in particular details of the price that was agreed for the sale of my account.

In your letter you continue to refer to an offer of goodwill that Capital One have made. The Court is fully aware that I have refused this offer and also aware that any cheques that you have sent have been returned and that I have requested you reverse the payment you claim to have made to my account. Incidentally, how you can have actually made a payment to my account when it appears that the account has been sold to another Company? I repeat earlier requests that you provide written confirmation of receipt of the returned cheques and confirmation of the reversal of the payment you claim to have made to my account. On a general note it may interest the court to know that your calculations with respect to the statutory interest portion of your offer appear to be incorrect. I actually calculate a figure of £3xx for statutory court interest on the listed charges which is considerably higher than the figure that you actually offered £7x.

Regarding the paragraph entitled “ Outstanding Issues – Compound Interest”

I refer you, once again, to the PoC in which I specifically request that my claim for compound interest be viewed in the context of my instant claim and not in isolation. Paragraph 9 of the PoC precisely details my claim for compound interest.

With regards to the Terms and Conditions of the Account. I wish to advise you that you failed to supply a copy of the Terms and Conditions of the Account in response to my original SAR letter of xx/xx/xxxx. I therefore repeat my request that you supply a copy of the original contact, signed by myself and a copy of the terms and conditions purported to be supplied at that time together with any subsequent amendments to these terms and conditions until they reflect current terms and conditions of the account.

In relation to your statement regarding an implied term, I once again refer you to paragraph 9 of the PoC, in that my claim is not reliant upon any implied term.

Justification of my claim and the relevance of “Sempra Metals Vs HM Commissioner of Inland Revenue” together with other applicable case law will be fully detailed in the “Statement of Evidence” that I will submit to Court. I therefore see no necessity to go into any further detail in this response. However, in answer to your claim that there is no evidence that Capital One has been unjustly enriched by their action I would draw your attention to the following paragraph of the Sempra judgment :-

33. As Professor Birks pointed out, the availability of money to use is not unequivocally enriching in the same degree as the receipt of money: Unjust Enrichment, 2nd ed, p 53. But money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra of what the Revenue actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands, as Lord Walker puts it in para 180. The Revenue accepts that the money it received prematurely had a value, but it says that the restitutionary award should take the form of simple interest. I do not think that such an award would be consistent with principle. Simple interest is an artificial construct which has no relation to the way money is obtained or turned to account in the real world. It is an imperfect way of measuring the time value of what was received prematurely. Restitution requires that the entirety of the time value of the money that was paid prematurely be transferred back to Sempra by the Revenue.

There are, of course, many other such references within Sempra to support the arguments detailed in the PoC. Additionally, I would at this stage, also like to draw your attention to the Law Commission Consultation paper no 167 with respect to Compound Interest.

You refer to your purchase interest rate and that your goodwill offer, which I have refused, refunded all of the purchase interest that I had ever paid. I have never requested that you repay any purchase interest. You fail to mention that the Cash advance rate you applied to my account was 34.9%. This rate is relevant to my claim as it is clear that in applying these unlawful charges Capital One have benefited from a cash advance, taken from me.

Regarding the Paragraph entitled “Your Breach of Contract”

In response to the points made here I refer you to paragraphs 6 and 7 of the PoC and repeat them below for clarity.


7. The Claimant contends that:

a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of contract breaches by the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unjustly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.


Furthermore, the charges debited to the Account constitute contractual penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the contractual breach. A penalty clause is void in its entirety and unenforceable.

I do not disagree that your charges have been applied to my account following a breach of my contract. I also do not disagree that Capital One would have been entitled to recover from me the actual losses incurred and prior to commencing this claim I would have been quite happy to pay this. However, as you quite rightly state in your letter, you have not sought to claim these losses. To do so Capital One would actually need to establish and prove the true costs involved. I will be submitting a Draft Order for disclosure to the Court together with my AQ. The draft order will request that the Court issue Capital One with disclosure orders similar to those shown below :-

a) Whether such charge is accepted to be a penalty, and if not why not.

b) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

c) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

Regarding the Paragraph entitled “Settlement”

My claim remains as not settled.

I am confident in my claim and in the Court’s ability to understand and adjudicate fairly upon the contended issues. I object and disagree with your comment that my claim is vexatious and disproportionate.
My claim is properly constructed and calculated, whereas your rejected offer appears to be lacking in any logical base and is also incorrectly calculated according to the written explanations provided.

I invite you to resolve this matter and in doing so avoid further wasted costs and Court time by settling my claim, in full and without further delay.

Yours sincerely


Summary of repeated request for additional information in connection with the claim :-

1) Copies of Account statements covering the period from 8th February 2003 to the present date.
2) Full details of the account sale.
3) Confirmation of receipt of the returned cheques and confirmation of the reversal of the payment you claim to have made to my account.
4) Copy of the original contact and copy of the terms and conditions purported to be supplied at that time together with any subsequent amendments to these terms and conditions until they reflect current terms and conditions of the account.

[HaliMac]

Re: Budgie Vs Capital One

Good re-write. Tighter, much more focused and businesslike :thumb:

[Budgie]

Re: Budgie Vs Capital One

AQ filed today at Court and copy of the AQ and response letter sent to Capital One as well.

£200 lighter !!!!!

Interesting though, I checked with Clerk and as of 2PM Capital One hadn't filed their AQ.

I suspect the usual " Oh as far as we were concerned the claim has been settled, so we didnt file an AQ" type excuse.

Anyway we shall see what happens.

LOL !!!!!!

[HaliMac]

Re: Budgie Vs Capital One

Let us know what happens, Budgie. So far so good. :thumb:

[Budgie]

Re: Budgie Vs Capital One

I received the Capital One AQ in the post this morning.

Here's the highlights.


TRACK

They have ticked the Small Claims Track box and written :-

"The value of the claim exceeds the threshold for the small claims track, however the matters are straight forward and most commonly remain in the small claims Court."

PROPOSED DIRECTIONS

They have ticked the NO box, so havent submitted any proposed directions.


COSTS

Against estimate of costs to date they have writtenN/A
Against "What do you estimate your oveall costs to be" they have written :- "to be assessed"

OTHER INFORMATION

Against "Do you intend to Make any Applications in the near future" they have ticked the Yes box and written :-

"Amend defence in the event that it is struck out at the Claimant's application"

And in the box where they can set out any other information they consider will help the Judge manage the claim they have written :-

"The Claimant bought a claim for the return of default sums charged to his credit card on the basis that they are unfair in accordance with the UTCCR. The default sums are no longer in dispute as they have been refunded in their entirety. The Defendant refunded all fees, all interest charged on both fees and genuine purchases and statutory interest and the court fee. The refunds cleared the Claimant's defaulted balance and a cheque was sent for the remaining amount of £541.62. The refunds were made on a without admission basis.

[Budgie]

Re: Budgie Vs Capital One

Have recieved General from of judgement or Order from the Court today in response to the AQ's submiited by myself and Capital One.

Judge has ordered

1) Judge has considered papers and allocated claim to the Small Claims track.
My Comment - GOOD

2) Judge has stated that hearing will take place on a date to be confirmed.
My Comment - OK as I have application hearing on 18th June I guess that date for hearing will not be decided until that application hearing has taken place anyway.

3) Judge has encouraged me to use the mediation service ( not ordered it )
My Comment - NOT GOOD - What's the point of mediation. Capital One have had enough opportunities to sort this out. I intend to call Capital One tomorrow to discuss their views on this LOL

4) Capital One didnt submit any draft orders with AQ. I however did, see below, Only direction that Judge has given is that not later than 14 days prior to the hearing (TBA ) each party shall supply to the Court and to each other (a) written statements of evidence of themselves and of any other witness upon whose evidence they wish to rely. Also advised what will happen if either party fails to do so.
My Comment : NOT GOOD - I intend to write to Court and seek to submit a variation to this order to consider more fully adopting the draft order that I submitted with my AQ. Although I may actually leave this until the application hearing on 18th June.

5) Judge kindly advised me that I have to pay Court fee for the final hearing before 11th June 2008 - £300
My Comment :- NOT GOOD. That will make a total of £800 that I have outlayed so far in pursuit of repayment of these charges plus compound interest. OK this is not so much of a problem and mainly due to the total value of the claim being above £5000. But it is now starting to get a bit more serious. Especially when you consdier that charges amount is actually only £739. However onwards and upwards.

MY Draft Order for Directions as submitted with AQ

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.



2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon. The Claimant requested this information in a SAR dated xx/xx/xxxx but to date the Defendant has not supplied this information to the Claimant. For the avoidance of doubt the Defendant shall now supply a copy of the original contact, signed by the claimant and a copy of the terms and conditions purported to be supplied at that time together with any subsequent amendments to these terms and conditions until they reflect current terms and conditions.

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Copies of statements of the Claimants account covering period 8th February 2002 to the present date. These documents were originally requested by the claimant in a SAR dated xx/xx/xxxxbut to date the Defendant has to supplied these to the Claimant. For the avoidance of doubt, the Defendant shall now supply details of how the balance on the Claimants account increased from £332.28 to a figure of £593.55 ( the purported present balance on the Claimant’s account )
• f) The Defendant shall supply details regarding the selling of the purported debt of £593.55 to Lowell.
• g) Any witness statements.

• h) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[Budgie]

Re: Budgie Vs Capital One

Hi All,

I have my Application hearing to try and get Capital Ones defence thrown out on 18th June.

In the post I have received a letter from Cap One together with a witness statement they have submitted to try and get my application dismissed and permission for them to submit a revised defence. They have also submitted a copy of their revised defence.

Copies of my original application, their letter, witness statement and proposed revised defence are attached.

They also sent me through a lot of additional information that I requested. I will cover this additional information in a separate post. Basically it involves some missing statements that they hadn’t supplied against my original SAR ( these contain some additional charges that I haven’t included in my claim ( another £120 ). They have also sent a copy of my original application for the credit card and some terms and conditions for the account ( but these are from four years after I opened the account ). They are also claiming that the account is still with them even though I have proof that they sold the account to Lowell in 2006.

I would appreciate input from people wrt the attached Capital One letter, their application to dismiss my application and their revised defence.

I will be working on my tactics for the 18th June hearing over the weekend.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

That's you and me both then, Budgie - except mine's in August. Best of luck.

I'll take a look at your letter when it appears and feed back.

Mac

[Budgie]

Re: Budgie Vs Capital One

OK I have prepared myself loads of notes and arguments to use against their application to dismiss my application and against their request to submit revised defence. Have also picked out what I feel are some killer points to persuade Judge to see my point of view.

I would rather not post them here until after the 18th June hearing.

Would still appreciate anyone's views on the Capital One docs attached to my previous post as a different pair of eyes may pick up on something I have missed.

Thanks Budgie

PS : I now have provisional date for final hearing ........10th Sept

[TANZARELLI]

Re: Budgie Vs Capital One

Hi Budgie,

Not had much time to look at this in to much detail but will post comments as I come accross them mate if that helps, that way I can re-read and re-post as we go along. Might not get to much done today as off out tonight.

From letter they have acknowledged the return of the cheque which I presume is the charges they refunded to you and then you returned as you were not preparred to accept this as settlement, correct?

If this is so then charges have not been paid they have attempted a settlement which you have rejected, therefore the issue still stands, which I am sure you are aware.

In the witness statement they have admitted that the ERC submitted a templated defence preparred by someone who is not qualified LMAO, I think you can argue that litigation is a serious business and that if they choose to use templates in the hope that a claimant will back down, then they are purely abusing the process. Therefore they should not be allowed to submit an amended defence.

The claim is for restitution of money they have obtained from you and have re-lent at commercial lending rates. It seems they attempting to loose the charges element and enter court purely on the CI aspect, no surpises there mate eh.

I presume your using sempra on this mate?

[Budgie]

Re: Budgie Vs Capital One

Hi Budgie,

Not had much time to look at this in to much detail but will post comments as I come accross them mate if that helps, that way I can re-read and re-post as we go along. Might not get to much done today as off out tonight. Thanks Tanz

From letter they have acknowledged the return of the cheque which I presume is the charges they refunded to you and then you returned as you were not preparred to accept this as settlement, correct? Basically yes, they actually sent me three cheques for the same amount all of which we returned. Basically an attempt to try and tempt me to keep a deliberate overpayment LOL. Which would have come back to haunt me later on !!

If this is so then charges have not been paid they have attempted a settlement which you have rejected, therefore the issue still stands, which I am sure you are aware. Yep, that has always been the main purpose. I want to go to final hearing with total claim outstanding. POC requested that claim for interest was not considered in isolation.

In the witness statement they have admitted that the ERC submitted a templated defence preparred by someone who is not qualified LMAO, I think you can argue that litigation is a serious business and that if they choose to use templates in the hope that a claimant will back down, then they are purely abusing the process. Therefore they should not be allowed to submit an amended defence. I can claim abuse of court process and will obvioulsy bring this and many other such abuses to Judges attention. They will probably just plead "incompetance" which they at liberty to do and apologise profusley to the Court. But I will of course grab every opportunity to **** off their Barrister. LOL

The claim is for restitution of money they have obtained from you and have re-lent at commercial lending rates. It seems they attempting to loose the charges element and enter court purely on the CI aspect, no surpises there mate eh. Nope, no surprises. They are also heavily leaning on the argument that they have, in their view, settled the claim. They also appear to be trying to convince the Judge that I made an error in my calculations and also that My claim is based on interest incurred. There are many isntances in both their original and revised defences where it appears that they are trying to confuse and mislead the court.

I presume your using sempra on this mate?
Yep, of course.

Thanks Tanz, I appreciate your continuing input !!

Budgie

[Budgie]

Re: Budgie Vs Capital One

With the work I have done today I think I can succesfully argue that their original defence is struck out and therefore that their application to have my application dismissed is itself dismissed. There would obvioulsy be some cost benefits to me ( getting my application fee and some expenses paid ).

I also think I can also produce convincing arguments that their application to submit a revised defence is dismissed. Their revised defence whilst appearing to comply with CPR is full of errors and inconsistancies in relation to the actual claim and is therefore, IMO, a vexatious and misleading defence and therefore an abuse of court process. Shakey ground but worth a try. I do not believe there is a costs risk to me in doing this.

However, if I sense that mood of Judge is such that he is leaning towards allowing them to submit revised defence there is IMO some merit in actually letting them proceed on their revised defence as it gives me an opportunity to (a) submit a future application to strike out that revised defence (b) Use that revised defence as a lever to submit an application for a variation to the Judges orders in respect of the final hearing and request the Judge orders full disclosure.

Obviously best result would be summary judgment but they are obvioulsy certain to appeal that anyway.

I suppose I will just have to see how things go on the day and play it by ear.

If Curley Ben is reading this I would appreciate any input you can provide on the effect on Capital One of them having sold the account debt to the Lowell Group in Dec 2006.