Judgment & Beyond ~ Budgie Vs Capital One

[TANZARELLI]

Re: Budgie Vs Capital One

What a fecker that is Budgie. Your right to be pee'd off I would be too. Grrrrrrrr to the typist with fat fingers who can't hit a 3 when she needs to.

[Budgie]

Re: Budgie Vs Capital One

OH well 3oth has come and nearly gone and Cap One didnt file anything at Court today.

Will wait a few days..........................

LOL

[Amethyst]

Re: Budgie Vs Capital One

Tools' court reckon they are 4 weeks behind so don't expect much to happen quickly regards their disregard of orders.

[Budgie]

Re: Budgie Vs Capital One

Guess what arrived in post this morning.

Attached are Cap One's WS and Skeletal arguments.

Remember that Judge requested the following :-

a) What payments the Defendant has made to the Claimant in respect of the subject matter of the claim whether before or after the institution 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) Insofar 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.

Will leave you good folks to have a read of the attached and hopefully let me know what you think !!!!

My own WS and Skeletals are shown in earlier posts

Thanks Budgie

[Budgie]

Re: Budgie Vs Capital One

Attachments now added to previous post

[TANZARELLI]

Re: Budgie Vs Capital One

lol at 22 in the second attachment is that the best they can do in regards to sempra PMSL.

[Budgie]

It appears so Tanzarelli,

Stupid thing is we are both using the same paragraph in our arguments. ( I am of course using many others from Sempra as well ).

Capital One arguement :

It is submitted that Sempra should be distinguished from the present case. In Sempra Metals, Lord Hope at [7] states that 'the claim in this case is not for more than what was had and received by the defendant' However, in the present case the claim for compound interest is clearly for more than what was had and received by the defendant.

They "conveniently do not quote the whole paragraph, which I feel, if given the meaning Lord Hope intended, actually totally negates the point that Capital One might have been trying to make. ( Whatever that was LOL ) :-

7. The claim that is made in this case, however, is for restitution. It is presented as a claim for the time value of money by which the defendant was enriched unjustly. The claimant submits that the common law requires that it be paid a sum which represents the value of the money over the period of that enrichment, and that this sum falls to be calculated by compounding interest over that period. It has been held that in an action for money had and received the net sum only can be recovered: Moses v Macferlan (1760) 2 Burr 1005; Fruhling v Schroeder (1835) 2 Bing (NC) 78 and Johnson v The King [1904] AC 817, applying London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. But interest has been awarded at common law where restitution follows the reversal on appeal of a previously satisfied judgment: Rodger v Comptior d'Escompte de Paris (1871) LR 3 PC 465. Various other exceptions have been recognised: see Heydon v NRMA Ltd No 2 (2001) 53 NSWLR 600, 603-606, per Mason P. Furthermore the claim in this case is not for more than what was had and received by the defendant. What was had and received was the enrichment. It is the enrichment itself that is to be valued, not anything more than that.

[rob banks]

Re: Budgie Vs Capital One

Hi Budgie

I looked at the WS and SA. I don't have many comments.

The WS is fairly straightforward (and accurate in so far as it goes?) but they have completly misrepresented your claim for compound interest. We know there is no contratual term that akllows you to claim it, that is not the point - it is in restitution of them having had you money all that time.

The SA is similar. I have some comments on their use of case law.

para 22: (have they got 'defendant' and 'claimant' mixed up?). This is not the point - it is irrelevant whether you could have got this rate of interest by investing the money, it is what you would have had to pay to replace it whilst they had it in their sticky hands.

para 23: as above

para 24: use of Westdeutsch is odd. What they say is true but irrelevant. It is superceded by Sempra anyway.

para 25: Halliday is alos completely irrelvant. Halliday claimed that there was an implied term that if the bank charge him x% he could charge them the same. He lost the case. You are not claiming that - there use of Halliday goes along with their misrepresenation of your CI case - that there is no term that allows you to do it. We know there is not. We don't need one.

Steven

[Budgie]

Re: Budgie Vs Capital One

Thanks Rob,

I picked up on all of those bits. Their WS and skeletons are, in my opinion, very weak. They hardly tackle the compound interest arguments at all.

One thing I am working on is a strategy to counter their arguments regarding the £220 charges that I havent actually paid to them.
I am basically planning to recalculate my claim without applying compound interest on the charges that I havent actually paid to them.
But I will actually add into my claim ( and apply compound interest to) what they have calculated as the "purchase interest" that I have paid to them on the charges that I have actually paid.
Overall this will reduce the value of my claim a bit but that's pretty irrelevant at this stage.
I plan to write this all up in a letter to them and suggest that they settle my claim on that basis.
They will probably decline but at least I will be seen as taking some of their arguments into account ( negating them for the purposes of the final hearing ) and attempting to settle on a compromise basis.

Will post up draft later this evening

Budgie

[Budgie]

Re: Budgie Vs Capital One

OK, have thought about this long and hard today and plan to send the following settlement proposal letter to Capital One.

It's pretty self explantory and includes some new information that Ame and I picked up on the morning on the Capital One website in realtion to a change to their terms and conditions.

I would appreciate peeps views on the draft letter below and the overall strategy.


WITHOUT PREJUDICE


Account No: xxxxxxxxxxxxxxxxx

Claim Number xxxxxxxxxxxxxx

Dear Capital One Bimbo,

I am writing to propose settlement of my claim prior to the final hearing due to be held at xxxxxxxxxxxxxxxx County Court on xx/xx/xxxx.

In relation to this proposal I wish to make the following comments with respect to your witness statement and skeleton arguments.

1) With respect to paragraph 10 of your witness statement. You did not supply me with copies of the statements for the account covering the period February 2003 to May 2003 as part of your response to my original SAR. When you did actually supply copies of these statements it became possible for me to establish exactly what was applied to the account during that period in respect of additional default charges or further payments to the account. I agree that I cannot claim either a cash refund or restitution by way of compound interest on the £220 of default charges that I have not actually paid to you and I have adjusted my spreadsheet accordingly.

2) In your witness statement you repeatedly refer to an offer to return all purchase interest actually applied to the account against default fees and purchases. In my original claim I did not include an estimate of the interest that you would have charged to my account in respect of the default charges. The reason I did not include this amount is because of the difficulty in accurately calculating this figure. For this reason I still choose to disregard any applied interest in this settlement proposal.

3) I am confident in the Court’s ability to use its discretionary powers and make an award of compound rather than statutory court interest. I do acknowledge that it may be extremely difficult to determine an appropriate rate of interest to be used in respect of an award of compound interest in this claim. The credit card in question is a 'Classic Visa card' and still has a credit limit of £200. The APR for the classic visa card is currently 34.9% APR and this is the rate I originally used for my claim. On the current version of the Classic Visa card credit agreement you now actually use an applicable rate ( for interest calculation ) of 30.34 % on cash advances and purchases. This is the rate that I now consider most appropriate for calculation of the compound interest element of my claim.

I do, however, acknowledge that Capital One, in normal day to day business, uses a variety of differing rates and methods to calculate interest on balances owed by Customers. The rate used appears to vary depending on the type of card, the credit history of the particular Customer, the credit limit applied to the account, whether the interest is being charged for purchases or for cash advances etc. Applicable rates currently range from 8.22% to 30.34% on purchases and 23.29% to 30.34% on cash advances. Should this claim actually proceed to a final hearing and should the Court agree my request for an award of compound interest then I will be happy to rely upon the Court's decision regarding an appropriate rate of compound interest to be adopted. In anticipation of this and for the purpose of this settlement proposal I suggest a rate of 27% per annum which is the approximate average applicable rate for cash advances used on the entire range of Capital One cards. For the purpose of this settlement proposal only I have therefore adjusted my spreadsheet accordingly.

4) Whilst examining your current terms and conditions for your entire credit card range, I noticed that you are in the process of amending terms and conditions. With effect from October 1st 2008 you are modifying the method of interest calculation for the default charge aspect on all the various card types. I quote from the current online terms and conditions for the Classic Visa account.

“If you incur a default charge (see Key Information - Default Charges below) on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums until repayment. Any interest payable on the outstanding amount will be calculated at 30.34% p.a. (variable). Interest on default charges will be calculated on a simple basis.
Interest is calculated from the date of the transaction or incurring of a fee, charge or expense, until the outstanding balance has been paid in full, with the exception that if you incur any default charges on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums.”

I believe that prior to this amendment you would have calculated interest on default charges using the same method as applied to purchases and cash advances; a compound interest basis. I quote from the terms and conditions applicable to my Classic Visa account at the date of opening.

“Interest will be charged for each statement period ( being the period between monthly statement dates ) on the average daily outstanding balance including all transactions and other charges debited to the Account.”

This substantial modification to your terms and conditions has, no doubtt, been implemented to attempt to counter the possibility of future requests for an award of compound interest as part of a customer claim for return of unlawfully applied default charges.

In summary, I offer you the opportunity to settle my claim prior to the final hearing which is scheduled for 12th September 2008.

This settlement proposal comprises the following :-

i) Waiving of default charges applied to the account but not actually paid by me totaling £220.
ii) Return of default charges actually paid as detailed in the attached spreadsheet totaling £639.
iii) Compound interest at 27% per annum calculated from the date of application of each default charge through to the present date as detailed in the attached spreadsheet and totaling £3455.
iv) Return of Court fees incurred, Filing claim £225, AQ £200, Application hearing £75, Totaling £500.

I would therefore be prepared to accept a total settlement payment of £4594.

You may deduct from this total settlement payment an amount of £373.55 to clear the revised outstanding balance on the account.

The remainder of £4220.45 to be paid to me by cheque.

Additionally, I require that any defaults registered against me are removed from my credit history held by blablabla. ( I need to check wording to use here )

I also need to establish whether I may obtain a refund, direct from the court of the £300 that I have paid in respect of the final hearing. Obviously, I cannot do this until I officially discontinue the claim.

Owing to the short timescales involved I would appreciate if you could telephone me on xxxxx-xxxxxx to indicate your acceptance or rejection of this settlement proposal before 5pm on Tuesday 19th August 2008.

Should you not agree this settlement proposal I will apply to the court to vary my claim in accordance with the revised totals for default charges and applicable compound interest rates as indicated above.


Yours truly

Budgie

[TANZARELLI]

Re: Budgie Vs Capital One

OK, have thought about this long and hard today and plan to send the following settlement proposal letter to Capital One.

It's pretty self explantory and includes some new information that Ame and I picked up on the morning on the Capital One website in realtion to a change to their terms and conditions.

I would appreciate peeps views on the draft letter below and the overall strategy.


WITHOUT PREJUDICE


Account No: xxxxxxxxxxxxxxxxx

Claim Number xxxxxxxxxxxxxx

Dear Capital One Bimbo,

I am writing to propose settlement of my claim prior to the final hearing due to be held at xxxxxxxxxxxxxxxx County Court on xx/xx/xxxx.

In relation to this proposal I wish to make the following comments with respect to your witness statement and skeleton arguments.

1) With respect to paragraph 10 of your witness statement. You did not supply me with copies of the statements for the account covering the period February 2003 to May 2003 as part of your response to my original SAR. When you did actually supply copies of these statements it became possible for me to establish exactly what was applied to the account during that period in respect of additional default charges or further payments to the account. I agree that I cannot claim either a cash refund or restitution by way of compound interest on the £220 of default charges that I have not actually paid to you and I have adjusted my spreadsheet accordingly.

2) In your witness statement you repeatedly refer to an offer to return all purchase interest actually applied to the account against default fees and purchases. In my original claim I did not include an estimate of the interest that you would have charged to my account in respect of the default charges. The reason I did not include this amount is because of the difficulty in accurately calculating this figure. For this reason I still choose to disregard any applied interest in this settlement proposal. I also believe that you can regard this interest as a reasonable and fair figure for your costs when administering any breahes of account aledgedly caused by myself.

3) I am confident in the Court’s ability to use its discretionary powers and make an award of compound rather than statutory court interest. I do acknowledge that it may be extremely difficult to determine an appropriate rate of interest to be used in respect of an award of compound interest in this claim. The credit card in question is a 'Classic Visa card' and still has a credit limit of £200. The APR for the classic visa card is currently 34.9% APR and this is the rate I originally used for my claim. On the current version of the Classic Visa card credit agreement you now actually use an applicable rate ( for interest calculation ) of 30.34 % on cash advances and purchases. This is the rate that I now consider most appropriate for calculation of the compound interest element of my claim.

I do, however, acknowledge that Capital One, in normal day to day business, uses a variety of differing rates and methods to calculate interest on balances owed by Customers. The rate used appears to vary depending on the type of card, the credit history of the particular Customer, the credit limit applied to the account, whether the interest is being charged for purchases or for cash advances etc. Applicable rates currently range from 8.22% to 30.34% on purchases and 23.29% to 30.34% on cash advances. Should this claim actually proceed to a final hearing and should the Court agree my request for an award of compound interest then I will be happy to rely upon the Court's decision regarding an appropriate rate of compound interest to be adopted. In anticipation of this and for the purpose of this settlement proposal I suggest a rate of 27% per annum which is the approximate average applicable rate for cash advances used on the entire range of Capital One cards. For the purpose of this settlement proposal only I have therefore adjusted my spreadsheet accordingly.

4) Whilst examining your current terms and conditions for your entire credit card range, I noticed that you are in the process of amending terms and conditions. With effect from October 1st 2008 you are modifying the method of interest calculation for the default charge aspect on all the various card types. I quote from the current online terms and conditions for the Classic Visa account.

“If you incur a default charge (see Key Information - Default Charges below) on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums until repayment. Any interest payable on the outstanding amount will be calculated at 30.34% p.a. (variable). Interest on default charges will be calculated on a simple basis.
Interest is calculated from the date of the transaction or incurring of a fee, charge or expense, until the outstanding balance has been paid in full, with the exception that if you incur any default charges on or after 1st October 2008 then interest will be calculated from the 29th day after you have been given a Notice of Default Sums.”

I believe that prior to this amendment you would have calculated interest on default charges using the same method as applied to purchases and cash advances; a compound interest basis. I quote from the terms and conditions applicable to my Classic Visa account at the date of opening.

“Interest will be charged for each statement period ( being the period between monthly statement dates ) on the average daily outstanding balance including all transactions and other charges debited to the Account.”

This substantial modification to your terms and conditions has, no doubtt, been implemented to attempt to counter the possibility of future requests for an award of compound interest as part of a customer claim for return of unlawfully applied default charges.

In summary, I offer you the opportunity to settle my claim prior to the final hearing which is scheduled for 12th September 2008.

This settlement proposal comprises the following :-

i) Waiving of default charges applied to the account but not actually paid by me totaling £220.
ii) Return of default charges actually paid as detailed in the attached spreadsheet totaling £639.
iii) Compound interest at 27% per annum calculated from the date of application of each default charge through to the present date as detailed in the attached spreadsheet and totaling £3455.
iv) Return of Court fees incurred, Filing claim £225, AQ £200, Application hearing £75, Totaling £500.

I would therefore be prepared to accept a total settlement payment of £4594.

You may deduct from this total settlement payment an amount of £373.55 to clear the revised outstanding balance on the account.

The remainder of £4220.45 to be paid to me by cheque.

Additionally, I require the removal of any prejudicial information which Capital One Bank (Europe) PLC has passed on to third parties in relation to my account and in particular the removal of the Default Notice registered with credit reference agencies which was caused solely by the level of disproportionate penalty charges. In addition to this I also require that you remove any late payment markers which would also have a negative effect on my ability to obtian credit in the future.

I also need to establish whether I may obtain a refund, direct from the court of the £300 that I have paid in respect of the final hearing. Obviously, I cannot do this until I officially discontinue the claim.

Owing to the short timescales involved I would appreciate if you could telephone me on xxxxx-xxxxxx to indicate your acceptance or rejection of this settlement proposal before 5pm on Tuesday 19th August 2008.

Should you not agree this settlement proposal I will apply to the court to vary my claim in accordance with the revised totals for default charges and applicable compound interest rates as indicated above.


Yours truly

Budgie

A few additions added, feel free to use or remove lol.

Regards

Tanz

[Budgie]

Re: Budgie Vs Capital One

Thanks Tanzarelli especially for the bit regarding default removal.

What do you think of the strategy.

Rgds Graham

[TANZARELLI]

Re: Budgie Vs Capital One

Thanks Tanzarelli especially for the bit regarding default removal.

What do you think of the strategy.

Rgds Graham

Well as we all know Cap One will always (if a straight forward claim) roll over a play ball after court filing stage and refund charges and stat 8%. However with my claim even though I hadn't claimed CI on this one I requested the default removal and they stuck it out until the last minute before they removed it and even then they had removed it from 2 of the three main agencies and not callcredit, so until this was done I obviously kept the claim going.

They don't like to remove defaults but when pushed they will but you need to stand your ground with them.

I have to say that I think you may have a chance with them especially given the judge seems to have been on your side early on. They must have seen this and so may well fold. Its a game of poker really and you have offered to give them a chance to fold.

Hope it works for you mate, but got to be worth a shot.

[Budgie]

Re: Budgie Vs Capital One

Capital One have decided not to accept my proposal for settlement of my claim.

I had to call Rachael Howey to get her response, she told me that she had emailed me her response and then changed her mind and said that she hadnt. I told her that I hope she gets her act together a bit for the final hearing which is where we are now heading. It's 12th September and scheduled for 4 hours.

Am going to write to the Court advising them that Cap One have declined to accept the settlement proposal I have made to them and confirm the slighlty revised details for the claim taking into account the unpaid charges and interest rate points I made in my letter. Hopefull this will prove to the Court that I am being wonderfully reasonable and not at all devious !!!

Budgie

[Guest]

Re: Budgie Vs Capital One

Be careful that you do not reveal the details of your offer to the court. You marked your letter "Without prejudice" which means that the circumstances in which the content of that letter may be revealed to the court are very restricted.