Flangies v Capital One

[Flangies]

Re: Flangies v Capital One

Budgie
What a super star you are; I really dont want to disturb you if you have other commitments hun

x

[Budgie]

Re: Flangies v Capital One

OK, I have had a read through the details of your claim again.

In summary, you have claimed for return of all default charges (£1024) applied between 13/2/2002 and the present date.

Question, I notice that you did not incur any charges between 13/12/2005 and 13/2/2008. Are you sure that is correct?

You sent a SAR on 1/5/09, a preliminary letter on 12/6/09 and an LBA on 22/6/09.

the letters that Capital One have sent you in reply are basically Bog Standard template letters that look identical to the ones they sent me.

Capital One have offered you the difference between what they actually charged you and what they consider to be a correct charge ( £12 ). The total they have offered you is £160 plus £10 interest. This is exactly what they normally do when dealing with claims.

OK, your next step is to file a claim in your County Court.
Once you have filed your claim I assume that Capital One will follow the normal procedure they have adopted with countless other claims and attempt to settle your claim by forcing a payment upon you, they will do this by depositing money into your account ( bringing it to a zero balance ) and then closing your account. They will send you a cheque for the difference between the balance of the account and what they consider should be the settlement figure for your claim now that you have filed in the County Court.

They will consider that the settlement figure should be the total amount of your charges ( £1024 ) plus any purchase interest you have paid since opening the account ( Say £100 ) plus statutory court interest ( at simple 8% ) on the whole lot, plus any Court fees that you have paid ( If they follow the normal routine they will not actually calculate the statutory interest correctly ). They will file a defence to your claim with the Court on the basis that they have settled your claim in full.

They will probably follow the above procedure irrespective of whether you file your claim on the basis of statutory court interest ( correctly calculated ) or on the basis of compound interest.

I estimate that the total settlement figure they will try to force upon you will be in the region of £1300 to £1500. Which is basically sufficient to clear the current balance on your account and give you a few hundred quid spare to do with as you wish. This would probably all happen within 1 month of you filing your court claim.

SO my question now, taking into account that you might not wish to follow the same route as myself and have a long drawn out battle for the full amount of compound interest is....... DO you wish to prepare and file your court claim on the basis of a correctly calculated claim for statutory court interest or do you wish to file on the basis of compound interest?

IMO you have nothing to lose by going for the compound interest as (1) they will try to force a settlement upon you anyway ( based on statutory interest ) which you can obviously accept once they have forced it upon you and discontinue your claim at that stage and (2) We can try to add a couple of extra paragraphs to a compound interest court claim that may persuade them to offer you a higher settlement figure.

Please fire away if you have any questions !!!!!!

Budgie

[Flangies]

Re: Flangies v Capital One

Budgie

What a darling you are; thanks so much for the reply and for explaining it so well.

You asked the following;-
Question, I notice that you did not incur any charges between 13/12/2005 and 13/2/2008. Are you sure that is correct? - This is correct from the breakdown Cap one sent me, I must be honest; I found this hard to believe but in this period I sent in my payments on time and incurred no charges; but was only paying just over the min payments every month!

You also asked:- SO my question now, taking into account that you might not wish to follow the same route as myself and have a long
drawn out battle for the full amount of compound interest is....... DO you wish to prepare and file your court claim - I need to file it to court surely, or I will not get anywhere will I in getting my unfair charges back?
on the basis of a correctly calculated claim for statutory court interest or do you wish to file on the basis of compound
interest? -

IMO you have nothing to lose by going for the compound interest as (1) they will try to force a settlement upon you anyway
( based on statutory interest ) which you can obviously accept once they have forced it upon you and discontinue your
claim at that stage and (2) We can try to add a couple of extra paragraphs to a compound interest court claim that may
persuade them to offer you a higher settlement figure. - I agree I will be happy to go for compound interest; and if I feel I should settle if forced on me with a lesser figure and of course me being happy with the offer then I can. I guess I have nothing to lose hey?

If you could please help me with the wording for NI & POC I would be very very grateful and adding any paragraphs you feel fit.

As you say try for a higher settlement figure.

Thanks again Budgie
xx

[Flangies]

Re: Flangies v Capital One

Hello Budgie

Just a reminder when you hve 5 mins spare to have a look at my previous post.

I would appreciate your help with NI/POC; I really need and want to get it into court.

Does it cost £75 to put the claim in?

x

[Amethyst]

Re: Flangies v Capital One

Flangies have sent you a pm. xx

[Flangies]

Re: Flangies v Capital One

Ame

I know Budgie hasnt been about on the site for very good reasons. However I have a quick question to ask.
Is there a time scale of getting my claim into court? As you know I am needing a little help with the POC/NI and Budgie was kindly going to have a good look at it for me.

If there is no time scale then that is fine; I will wait for Budgie as I know he has some ideas for me. If there is a tiime scale; can anyone else help with this?

I look forward to hearing from you
x

[Budgie]

Re: Flangies v Capital One

Hi Flangies,

Sorry its been a bit hectic for the last week or so.

I will try and get draft POC posted up for you over the weekend.

There is no timescale to worry about but I know you want to get this claim filed without delay.

Regards Budgie

[Flangies]

Re: Flangies v Capital One

Hello Budgie

Will you be able to help with the draft of POC for me over the weekend? I can then file to court early next week.

Help very much appreciated as always
x

[Flangies]

Re: Flangies v Capital One

http://www.moneysavingexpert.com/rec...-charges#step5

Hi all; please see link here from Martin Lewis; he is suggesting going to the Financial Ombudsman Service (FOS) rather than always filing to court with respect to Credit Card charges when not being offered full amount.

What are people thoughts, he makes the FOS way sound easier; not necessarily quicker though.

I guess this would be a good routhe for those who havent got the court fees up front!

[Budgie]

Re: Flangies v Capital One

It's best to file claim at Court.

You won't be able to claim back any interest if you go the FOS route.

Apologies for delay in sorting out your POC, I have been out of action for the last few weeks. Things are now getting back to normal so I will try to get POC sorted in next day or so.

If you do not have the Court fee available and are in receipt of benefits then you should be able to file your claim without having to pay the fee by using form EX160 - Fee remission form The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available
.

Provided you win your claim and there is no reason to think that you wont, then any Court fees that you have actually had to pay out should be returned to you by the Defendant as part of any settlement.

[Flangies]

Re: Flangies v Capital One

Budgie

Thanks hun; I will go down the court route then, no problem; yes please if you could healp with the POC when you can of course that would be fab. I should be ok to find the court fee, and as you say I will get it back.

Thanks again
x

[Budgie]

Re: Flangies v Capital One

Hiya Flangies,

Below is a draft POC for you to review.

I need to check a couple of details with you and will drop you a PM this evening.
I am also updating your spreadsheet to recalculate the interest up to the present day and will PM this to you this evening as well.

Please feel free to fire away if you have any questions regarding the draft POC.

I have one or two other bits I would like to add in that may increase the chances of you getting a prompt settlement based on compound interest rather than an offer of settlement ( at the submission of defence stage ) based on simple interest. However I thought I would get draft posted up in its present form for you and others to review.

Regards Budgie

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant during XXXXXXXXX XXXX, whereby the Defendant was to advance credit facilities to the Claimant under a running credit agreement, Account number xxxx xxxx xxxx xxxx(“The Account”).

2. The Account is governed by the Defendant’s Credit Card Agreement (“the contract”)

3. During the period the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “over limit” and “late payment” charges on the part of the Claimant and also charged interest on these charges once they were applied.

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

5. A schedule of the debited charges is attached to these particulars of claim (See Appendix 1).

6. The Claimant will rely on the Office of Fair Trading (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts.

7. The Claimant contends that:

a) The charges debited to the Account: i) are punitive in nature and constitute contractual penalties rather than liquidated damages.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; v) were paid by the Claimant under the mistaken impression that the charges were lawfully applied by the Defendant, in the first instance.

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) and the common law.

8. THE LIMITATION ACT 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT report was published on 5th April 2006.

b) In the alternative to 8.a), the Claimant seeks permission to proceed with the claim under section 32 (1)(c) Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant could not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

9. COMPOUND INTEREST

The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimant’s case for compound interest is not reliant on any implied contractual term.

The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in the Claimant’s case.
It is clear from the Sempra Metals case that the Court has a common law jurisdiction to award compound interest as damages. Similarly applying Sempra the Court has a power to award compound interest where the Claimant has sought a restitutory remedy for the time value of the money paid under a mistake.

The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanors which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money. It is the Claimant’s case that the Defendant would remain unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

10. Accordingly, the Claimant claims:

a) Return of the amounts debited between XXXXXXXXX XXXX and XXXXXXXXX XXXX in respect of penalty charges totaling £XXXXXX

b) All applicable Court fees

c) Compound interest at an annual rate XX.X% compounded monthly from the date of each individual charge to XX/XX/XXXX of £XXXX.XX and then continuing to accrue at the same rate from XX/XX/XXXX to the date of judgment or earlier settlement.

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by Cheque, which should be made payable to the Claimant.

I believe that the facts stated in these particulars, comprising of two pages, plus one appendix sheet are true.

[Flangies]

Re: Flangies v Capital One

Budgie
You are a star; thanks so so much for helping me with this. I will await your PM to answer any more questions you may have.

Thanks again
xx

[Amethyst]

Re: Flangies v Capital One

hi flangies

The POC Budgie posted above, have you made any amendments to this since then, I realise you have been conversing by PM. Can you post up the current version please.

Thanks

Ame
x

[Budgie]

Re: Flangies v Capital One

Flangies and Ame,

Sorry I haven't been around very much lately.

Flangies. let us know where you are with your claim and if we can help. Have you filed your claim yet ?

Budgie