Well I received an offer of just over £1200 for the PPI (bit short of what I wanted but going to accept it) together with a letter inviting me to offset this refund against the credit card account that is in default. Naturally I said I did not concur with this and want the refund sent to me direct - I await developments I know they will wriggle like mad, but when you think about it, they have admitted being in the wrong, so why should they have any say in how the refund is processed? I realise its not as straight forward as that, but when you think about it, would someone caught at fraud have any say in how any funds were confiscated and repaid?

moggy MBNA will just pay you what they want to unless you decide to push it further. In our case they sent a cheque for £122 against a claim of £1400, when we rejected it, they just sent the cheque again..... Only you can decide the merits or otherwise of taking your case to court.

Just a quick update - really to do with the PPI side of things I mentioned earlier. After alll this time, they have finally written to confirm that they are upholding my complaint - somewhat hard not to when the application form had self-employed printed on it by them. Whats really miffing me is that they have said 'we will write to you within five weeks telling you how this matter will be settled". FIVE WEEKS! After all the delays thus far. Im really tempted now to insist that this refund be paid back by separate cheque now, and not offset against a credit card debt that is most likely unenforceable.

In a word useless.... In response to my original demand for the charges we received a cheque for £120 odd which we declined to cash and returned them voided. When we then sent a 14 day LBA, we got another cheque for the same amount along with the commonplace 'we will not communicate further in writing'. Am now in the process of preparing the court papers - will update forum when theyve been filed.

Hi there On behalf of my g/f I SARd Virgin/MBNA in March and we ascertained that there were £362 of default charges applied to her account between Feb 2006 and November 2008 (when it was paid off and closed) We wrote to them demanding these sums back together with restitutional interest (at their eye-watering APR of 34.9%) and the claim amounted to approx £1200 - they offered £120 odd which we rejected. They have now said we will not communicate further in writing. Obviously we are now contemplating court action, but having just taken on Capital One and only got a very partial success (£500 out of £2000), I wonder if anyone can answer the following: (a) How agressive are MBNA when it comes to defending court action? There are very few charge reclaim threads here. (b) Can we charge restitutional interest from the charge date to now, or only until the account was paid off? My gut says they have had use of the money right up until now, but I wondered if I am missing any relevant point of law. Your responses would be much appreciated

ims Okay...will PM the site team re this. Needless to say i concur with your comment that Cap One are fighting back.

ims Ive taken a break from these forums for a couple of weeks....so could you please explain to me how exactly CapOne 'got lucky' on my case? They retained an extremely competent barrister who pulled Kleinwort v Lincoln to pieces.....or have I missed some new info from the site team?

Martin Well I must have a good 5 mins during my court hearing, where I had the chance to stress that the case was specifically not about credit cards and how the two operate on wholly different business models. The judge in my case seemed to be quite well up on the case, but he was at pains to stress that in his view, because of UTCCR 6.2, default sums could not be assessed as penalty charges. If that was/has been the case, how the hell did so many people win their claims previously? In my particular circumstance, Cap One paid out all the charges up to six years old, just as they filed their defence, without any consultation with me, and with the minimum of interest. This in effect made the bulk of my claim about the older charges, and thus about limitation. The judge frankly just wasnt interested when or why they repaid the newer sums - he just said 'well theyve been repaid'. We then spent a very focussed time on the limitations act s.32.1c and on the skeleton argument that had been devised to blow the Kleinwort Benson case out of the water. Now Ive had time to reflect, I do feel I was treated okay, its just that judges will naturally lean toward the qualified side of the room for directions on the way the case should proceed. There was no chuminess between the two, it was all very businesslike. Maybe if i hadnt been a LiP things could have panned out differently....but I also think the judge was minded this was a small claims case, and once the barrister started mentioning how much time would be needed to dissect the terms and conditions on the subject of penalties, he backed off. Only he knows his motive.

Thank you for the kind words guys....at the end of the day its only money lol (and as slick said, the question of costs had started to worry me once i saw the kind of barrister they had retained).... One point I wanna make.... In response to Brian2009's point about how much it must have cost them with the barrister..... Think of it this way - perhaps they took the view that by retaining a top class barrister, she could develop some arguments that could not only squash little old me, but could used against lots of other litigants. (Hmmm i think that makes me a guinea pig lol). By knowing that this argument against the limitations act is a winner, think of all the future hefty charges + compound interest over six years old claims they can beat in the future..... probably a damn good investment on their part. On the other hand I could have just got a duff judge, but i really really dont think so. He was good on consumer law, and we spent a damn long time going through the 90 odd pages of the Kleinwort benson case.

By the way, Im now quite chilled out after all this is out of the way. Slick132 will confirm just how much effort was put into this, and the pressure I felt under. However, I honestly beleive I did the very best I could have done as a LIP, but when these guys bring out the heavy professionals, you are really up against it from the start. I must also point out that if anyone is intending to push their case into court, you simply MUST put in 100% effort. Do not forget that even in the small claims court, if the judge thinks the case was without merit, or very poorly prepared and a waste of court time, you can still get some costs awarded against you.... We simply must bury this idea now that Cap One will just cave in.

Yes I have their argument here.... Basically they are alleging Kleinwort Benson clearly relates to mistake in law which was rectified by a subsequent change in law. If you allege that payment of the charges was a mistake in law, they will counter by saying the OFT review in April 2006 was not a change in law, but simply a 3rd parties interpretation of the law. The judge very strongly agreed with this. Having seen their argument ahead of time, i tried strongly to argue that payment of charges was a mistake of fact, not law - as this is discussed in Kleinwort as well. The judge was giving serious consideration to this for quite some time, and I thought he was going to agree, but ultimately he decided the whole of Kleinwort related to a mistake in law, and thus could not be used to support my argument for postponement of the limitation period As you can see....it is now no longer possible to just cite a crucial case like this, you must assume that Cap One will be looking to pick it pieces, and will use the personnel they need to do so.

Well guys.....I lost Everyone here MUST now expect Cap One to defend these cases thoroughly if you are going for older charges. They retained the services of a London EC4 barrister, who was extremely efficient and knew Consumer Credit Law backwards. In case you think I may have slipped up, the judge actually said I had prepared one of the best court bundles he had seen this year, and my arguing of the points I wanted to make was done most admirably. However: Do not expect Cap One to pay anything over six years old. They are convinced they can now overturn the provisions of the Limitations Act 1980 32.1c with legal argument and this judge certainly agreed. If you choose to use the Kleinwort Benson case now....you will get a very detailed rebuttal. I very very nearly got the judge to go my way....but then he seemed to just fold and find for Cap One. They are also using the OFT v Abbey National test case as concrete proof that default sums cannot be assessed as penalty. Yes yes yes I know the case didn not apply to credit cards (must have said that in court three times) but they now assert that s6.2 of the UTCCR 1999 enables the two to be linked. Well....I lost but Im not gutted. The whole experience was not unpleasant (though a little dull, as the judge talked so slowly for the transcriber) if your case contains charges before and after six years old, expect them to pay back the newer charges when they file their defence, then tackle you head on for the older stuff. Sorry guys....but I really didnt let you down. I could not have argued any better for a litigant in person.

Well Ive just spent the morning going over the WS submitted by Cap One. To me it is absolutely full of holes and inaccuracies but it remains to be seen whether the judge will agree. The absolute crux of the matter is they say 'Default Sums have already been held as not being penalties in Common Law' and they quote the OFT case that the banks won in the supreme court. Now we all know that case related to specifically Bank Current Accounts NOT credit cards. Lets hope the judge is clued up on this and not easily led by a smooth barrister.

mp Yes and no.... I received a full refund of charges plus some decent interest from Aqua, however I didnt chance my arm there as members of the Halifax group are getting a name for defending vigorously and retaining some serious legal muscle. I took Natwest to court and won with compound interest, but perhaps mainly coz their legal representatives were erm....crap. They forgot to defend, so I got judgement by default. From then on it was a question of haggling / getting the money out of them. Theres a thread on the Natwest forums somewhere. Even with a judgement it was quite stressful as they try to convince you they will easily get it set aside.

Yes I did email that person (twice in fact) but received no response. Funnily enough, its the same person whose witness statement I will be reading carefully tomorrow. If you dont mind, I dont want to share my WS around until after my court hearing, as to be honest, if it proves to be a flop, I wouldnt want others to suffer because of me.

For all of you thinking that Cap One will just 'cave in' please remember what I said previously about it not being guaranteed... We have received a court bundle today from them, so they are certainly intent on taking this to the wire. Please please get your preparations organised. I will post further when Ive dissected the witness statement....to be honest, the rest just looks like bumph - T&Cs, application forms etc. However, we received it 3 days after it was due, and court date is wednesday.

mp Many thanks for that That ladies name appears on my defence paperwork as well but there are no contact details. Will send an email to try and see whats happening - if nothing else they owe me a response to my court bundle & draft directions.

I had a CCJ against Nat West as part of a separate charges reclaim and they were VERY keen to get it removed

lewte In order to know what you can claim against rental income, contact your lender and ask them for a mortgage interest certificate for each of the relevant years ended 5th April. Its not what you pay, its the interest charged that is tax deductible.

sfu If you take one step back and think about this logically, it would be far too easy for defendants to side-step the court process if they merely assigned their liabilities away. At the very least I would press for it being considered an abuse of court process, seeing as it happened 3 months after my court action was instigated. slick Aye - theres no way I would consent to having to sue anyone else - not after all this time. I have to say, it looks as if we will be heading into court, seeing as Cap One have made no contact, and it is seemingly impossible to get email/telephone contact details of their legal department. So be it - but it does state in the judges draft directions, that once our court bundle was submitted they have 14 days to serve a response stating whether they accept the status of penalty charges applied to the account. If not, they are supposed to give a statement of how their fees are calculated. Im not one to hope for them behaving properly after all this time...but the 14 days are up on friday. No doubt they will serve them to court and 'forget' to send me a copy.

Heard nothing from Cap One so I assume we will be meeting in court soon.... Did get a Notice of Assignment from AIC the other day, saying they now own the 'debt' of £400 odd. Somewhat interesting - if they lose the court case, or wish to settle, have Cap One now lost the ability to offset seeing as its not their debt any more, but my court case is against them?

lewte Hard to believe I know, but Im an accountant by trade. When it comes to renting out your property, you are only liable to tax on the excess of rents over expenses like mortgage interest, insurance, repairs & maintenance etc. If you are renting out the property furnished, you also get a wear and tear allowance equal to 10% of the rent received. Many people rent out their property just to cover the mortgage repayments - in a lot of instances there is little if any taxable net profit. Best advice I can give you....take your head out of your hands on this matter, and start doing some fag packet calculations. Remember - lettings are calculated on the year ended 5th April.

MP Ahh thats really good to hear Sorry if I gave the impression I thought you werent putting in the legwork lol.... When I was doing my witness statement I realised that it was one of the few things on CAG where you really did have to go right down to basics. Getting all the facts in there, but at the same time having it read well and flow well is very much a challenge. At the time, I said to slick132 I would make people aware how much effort is needed - so Im sticking to my word hehe. Your next step is getting your draft directions sorted for the Allocation Questionnaire - if you get stuck, send me a PM and I can assist you. All the best SS

MP Thanks for the update on my thread....as you can see Cap One seem to be using a pretty standard defence in these cases. Its your ability to know your own case and push it to the final stage (ie court) they will be looking to test. I think its very dangerous to assume they will necessarily 'cave in' before court proceedings just because they have in other cases. I would strongly suggest that as you have issued proceedings, you start researching your court bundle and witness statement immediately. There is no such thing on the CAG forums as a cut and past witness statement as each case is different. Your ability to send a compelling court bundle and WS to them pre-trial could well be the difference between them negotiating, and sending a legal bod to court to test your resolve. Not trying to be defeatist in the slightest, but having just done my court bundle, I can only say it is a LOT of work to get it done properly.

Shelley 1. Cap One will completly ignore you on cases like Kleinwort and Sempra. It just becomes a case of 'computer says no' 2. We got their final response I think back in january, however like naive eejuts we sent them two more letters trying to avoid court action. All you end up getting is their 'we will not correspond with you further' standard letter. 3. We rejected their pittance offers. Our claim was initially for over £1800 - they first offered under £40, then around £300. You are not under any obligation to accept low offers, as long as your claim is with merit - ie your facts are correct, and you have the case law to back it up. Having just had to submit my court bundle and witness statement (with help from slick132), I can only say start preparing for this the minute you issue proceedings. I make my living writing letters etc (accountant) but even i was taken aback by the amount of work needed to do a decent WS and bundle. There isnt a perfect cut and paste WS available (nor should there be as each case is unique) so PLEASE start researching now. You dont want your court case to be based around some poorly presented cut and paste WS