Judgment & Beyond ~ Budgie Vs Capital One

[ed.]

Re: Budgie Vs Capital One

Will keep checking back mate, have fun!

[TANZARELLI]

Re: Budgie Vs Capital One

Yeah I would say it stands a good change they will settle prior to court, but don't give um any wriggle room by not submitting.

[Budgie]

Re: Budgie Vs Capital One

Here's the first past of my new Witness statement.

It's pretty self explanatory.

I would appreciate comments and suggestions.

Am now working on second section covering issue B.

I then have to do skeletal arguments and maybe also new defence rebuttal.

Docs have to filed at Court by close of play Friday, it's gonna be a busy week.

Budgie

SUMMARY WITNESS STATEMENT OF CLAIMANT REGARDING STATUS OF DEFENDANT’S PAYMENTS TO CLAIMANT AND CLAIMANTS ENTITLEMENT TO COMPOUND INTEREST

This document has been updated in later posts

See later posts for final version

[ed.]

Re: Budgie Vs Capital One

Only thing jumping out at the moment (but it's probably my memory is) have any of these offers been WP - if so if you mention will they use that against you? If not, that reads fine and it's a very clear time line so the DJ can see the games they have been up to.

[Amethyst]

Re: Budgie Vs Capital One

factual not Factual

I agree with ed. about the WP. Also are you attaching all these letters...if so you need to refer to appendices etc. I'd also leave off the Note: bits

few odd bits...eg. point 7 - Defendant claimed - claimed what ?

Timeline is good though just needs tidying up and wording a bit better

[Budgie]

Re: Budgie Vs Capital One

Only thing jumping out at the moment (but it's probably my memory is) have any of these offers been WP - if so if you mention will they use that against you? If not, that reads fine and it's a very clear time line so the DJ can see the games they have been up to.

First offer under (9) was not marked WP. It was sent by Cap One in reposne to my preliminary letter. It;s pretty irrelevant in the overall scheme of thinsg because I refused it on numerous occassions and Cap One eventually replaced this offer with their latest attempts at a forced settlement.

The offer after commencement of proceedings ( (19) was not strictly speaking an offer. Although it does state the word offer in the letter "I am prepared to offer, without any admission of liability....." No mention was made of it bieng WP. However, in this letter Cap One were basically writing to me to tell me how they going to defend the claim and they then proceeded to defend the claim along those lines. IE They decided what they thought was, in their view, the correct value of my claim and argued that they had paid me this amount. Even though they havent. They are still arguing along these lines, even in their amended defence, after they had acknowledged that I had returned their cheques to them.

My strategy by refusing to accept any partial payment ( even as a gesture of goodwill ) was to keep the Claim intact. To justify my claim for compound interest I feel it is important and necessary to prove that the default charges were taken from me either as an unlawful penalty or by virtue of a legal mistake. Cap One argue in virtually all of thier correspondance since (19) that because they have repaid the default charges these default charges are therefore not in dispute. Well if they can argue matters along those lines then by refusing to accept any partial payment or goodwill gesture I can just as easily argue that the default charges remain in dispute.
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factual not Factual

I agree with ed. about the WP. Also are you attaching all these letters...if so you need to refer to appendices etc. I'd also leave off the Note: bits

few odd bits...eg. point 7 - Defendant claimed - claimed what ?

Timeline is good though just needs tidying up and wording a bit better

Thanks Ame, I changed the F to f and sorted out (7).

Will think about the Notes: bit and have a final tidy up later in week.

Just wanted to make sure that you thought the timeline idea was the best way of presenting this part of the argument.

Am working on the second part, compound interest arguments.
Will post as soon as ready.

Budgie

[Amethyst]

Re: Budgie Vs Capital One

Yes I definately think a time line is the best way to present a witness statement. I'm going to reread and possibly amend the first couple paragraphs again in the morning.

[Budgie]

Re: Budgie Vs Capital One

Thanks Babe xx

I have my nose stuck into part B of the WS at the moment and will continue with this tomorrow.

[TANZARELLI]

Re: Budgie Vs Capital One

9) 7/8/07 - Claimant received letter from Defendant
Note : In this letter the Defendant offered a gesture of goodwill payment of £252. Letter stated that if Claimant would like to accept the offer, the Claimant should sign and return an attached settlement form. The Claimant did not wish to accept this gesture of goodwill offer so did not sign or return the settlement form. This letter also confirmed the SALE of the account to the Lowell Group. “Now that we have sold your account, we don’t report anything about it to the credit reference agencies. As Lowell own it, it’s their responsibility to report on this debt, and you’ll need to agree repayments with them for the remainder of your balance.”

[Amethyst]

Re: Budgie Vs Capital One

I am the Claimant in this case.

This factual Witness Statement has been prepared by the Claimant and is limited to the following issues as directed by the court order dated XX/XX/XXXX;

a) Payments the Defendant has made to the Claimant in respect of the claim whether before or after the instigation of these proceedings ; when these payments were made ; how these payments were made ; and whether these payments should be credited against any sums claimed by the Claimant; and

b) In so far as the Claimant is entitled to interest on any principal monies allegedly paid or payable by the Defendant, whether that interest should be simple or compound interest.


Response to Issue A

The Claimant contends that the timeline and associated notes, detailed below, provide the Court with clear evidence of the circumstances of the various gesture of goodwill offers made by the Defendant, before and after the instigation of proceedings.

The timeline and associated notes also provide clear evidence of the Claimant’s rejection of these offers and also clear evidence of the return of any forced payments made by Cheque to the Defendant, and the Claimant’s requests for reversal of any forced payments made by the Defendant to the Claimant’s account.

Additionally, the Claimant contends that as all offers made by the Defendant have been rejected by the Claimant and that as any payments have been either returned to the Defendant ( if sent to the Claimant by Cheque ) or requested to be reversed ( if applied directly to the Claimant’s account’s ) then it is evident that there are no payments which should be credited against any sums claimed by the Claimant in relation to the subject matter of the claim.

[rob banks]

Re: Budgie Vs Capital One

My strategy by refusing to accept any partial payment ( even as a gesture of goodwill ) was to keep the Claim intact. To justify my claim for compound interest I feel it is important and necessary to prove that the default charges were taken from me either as an unlawful penalty or by virtue of a legal mistake.

I feel this is the important issue here. Restitution requires you to establish one of the established 'unjust factors' such as mistake, duress, etc. Also restitution is subject to estoppel. Both of these mean that it is vital to keep the two bits of the case together IMHO.

On the second part, it seemsto me that your POC says everything that needs to be said although the long series of quotes in post #19 could usefully be added, perhaps with a little comentary. I also think para 113 (which you have ommitted) is telling:

If this approach is adopted the unfortunate decision in the London, Chatham and Dover Railway case will be effectually buried in relation to the payment of interest for non-payment of a debt and in relation to the payment of interest for having the use of money in personal restitution cases. The law will achieve a principled measure of consistency between contractual obligations and restitutionary obligations. The common law in Australia has developed in this way. The common law in England should do likewise

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Sorry, should also have said that the rationale for refusing the offer and keeping the case together should also go in the witness statement to show you are being reasonable and not vexacious.

[Budgie]

Re: Budgie Vs Capital One

OK, I wanted to post this up for peeps to check through, if you would be so kind.

I need to go through and make some amendments anyway but would appreciate any input, Have I missed anything glaringly obvious. Is there anything i should add, or take out.

Don't worry too much about spelling etc , I will sort that tomorrow.

SUMMARY WITNESS STATEMENT OF CLAIMANT REGARDING STATUS OF DEFENDANT’S PAYMENTS TO CLAIMANT AND CLAIMANTS ENTITLEMENT TO COMPOUND INTEREST

I have updated the document originally posted here, see final version in later posts.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

Looking good, Budgie. I'll take a closer look through later and get back to you if there's anything I can add

[Budgie]

Re: Budgie Vs Capital One

I have updated the document originally posted here, See later skeletal argument post.

Budgie

[Niklowe]

Re: Budgie Vs Capital One

Not meaning to be pedantic Budgie. one or two spelling mistakes. Aside from that it would appear to be well written and must gain respect from the court.

PS I wish I was as clever as you.