Capital (one) Justice

[johnerog]

Hi FG.

 

I get you. All I have ever had from Cap 1 is a set of T&C's so if they are saying thats all they have by way of agreement then I get that Dismissed.

 

Summary judgement do you think?

[flooz]

Keep going Johnerog, I'm following your case with interest, as it seems this is the position I may find myself in, in the future. I'm impressed by what you're achieving.

[foolishgirl]

 

Summary judgement do you think?

 

:-? You can't get SJ until you've launched a claim

[banker_rhymes_with]

Hello J!

 

Will try to help, bit busy at the moment, but have subscribed, so will come back ASAP.

 

Cheers,

BRW

[johnerog]

FG. and all.

If I issue the following claim in total, could I then ask for a summary judgement on para.1.

john.

 

Brief Details of Claim.

 

1.The claimant requests the Court make a declaration under section 142 of the Consumer Credit Act 1974 that the Agreement numbered XXXXXXXXXXXXXXXX is null and void, as the defendant has admitted there is no enforceable agreement in existence.

 

2.The claimant requests that the court instruct the defendant to cease processing the financial information of the claimant without permission, contrary to the Data Control Act 1998.

 

3.The claimant requests the court instruct the defendant to remove all detrimental information regarding this account from the files of all Credit Reference Agencies.

 

4.The claimant requests the reimbursement of charges and interest improperly levied against account numbered XXXXXXXXXXXXXXXX in the sum of £xxxxxxx.

 

5. Damages to credit rating

[foolishgirl]

 

Brief Details of Claim.

 

1.The claimant requests the Court make a declaration under section 142 of the Consumer Credit Act 1974 that the Agreement numbered XXXXXXXXXXXXXXXX is null and void, as the defendant has admitted there is no enforceable agreement in existence.

 

Without reading your thread again - have they admitted no agreement or just one that isn't signed?

2.The claimant requests that the court instruct the defendant to cease processing the financial information of the claimant without permission, contrary to the Data Control Act 1998.

 

3.The claimant requests the court instruct the defendant to remove all detrimental information regarding this account from the files of all Credit Reference Agencies.

 

4.The claimant requests the reimbursement of charges and interest improperly levied against account numbered XXXXXXXXXXXXXXXX in the sum of £xxxxxxx.

 

Don't think you'll get a monetary order on a Part 8 claim. You may have to rephrase like:

The claimant requests that the court order that, due to there being no agreement in existence, the defendant has no contract with the claimant that would enable the levying of charges & interest. Further, that all such sums were therefore unlawfully obtained by the defendant & should be returned to the claimant in full.

5. Damages to credit rating

 

Again, what are you seeking? Monetary recompense? You have to spell it out.

 

FG

[johnerog]

Firstly FG I want to say how much I appreciate your help.

 

The following is the relevent e-mail from Cap. the above letter was later.

 

Dear John

Thank you for forwarding me the email below.

With regard to paragraph 1 of the draft order, I can confirm that we do not hold in our possession a signed copy of the Credit Agreement.

We have already provided you with the original terms and conditions of the Credit Agreement (enclosed with our letter of 20 October 2009).

We have also provided you with a copy of the credit agreement with the current terms and conditions (enclosed with our letter of 18 March 2009).

Accordingly, the Application Hearing due this Wednesday is no longer required, as we are unable to provide you with any further documentation other than that already disclosed. I would be grateful therefore if you would confirm that you will notify the Court that the hearing can be vacated, as this will prevent further costs being unnecessarily incurred.

Please note that we will be contacting the Court ourselves to advise them that we have complied as far as we are able with your request for disclosure, and that should you wish to proceed with the Hearing we will seek an order in respect of our costs in accordance with Civil Procedure Rule 48.1.

I look forward to hearing from you.

Regards

Adam Berman

Adam Berman

Litigation Paralegal

Capital One Bank (Europe) plc

Direct line: 0115 843 2323

 

I got costs as well; by court order.

john

[johnerog]

This is the bones of the Statement, more or less the Brief detail with more meat.

John

 

Witness statement.

 

Preamble, Name address etc.

 

I produce one e-mail and one letter from ‘litigation paralegals’ at Capital One Bank Ltd., admitting they do not possess an agreement or any other legally binding document with regard to account referenced XXXXetc.

 

The claim against the defendant.

 

1.During a court action in November 09 the claimant discovered that no legally binding agreement existed between him and the defendant and that all payments made to the defendant were in the mistaken belief, [stated by the defendant] that a legally binding contract existed between the two parties. As this is not the case the defendant asks the court for a declaration of parties under section 142 of the Consumer Credit Act 1974.

 

2.The paramount principle of the Consumer Credit Act of 1974 is to protect unwary or unworldly consumers from unprincipled money lenders and it sets out in no uncertain terms how an agreement for the provision of credit must be documented. However; in this instance, the defendant has admitted that no agreement exists and the claimant submits that to permit the defendant to retain any money paid by the claimant under false pretences would be wholly contrary to the policy aims of the statute.

 

3.The defendant has charged the claimant substantial sums for interest and charges during the life of this account and the claimant submits that, if not entitled to a refund of all payments made, he is entitled to a refund of all charges and interest levied on the account as the defendant had no contractual or legal right to apply them.

 

4.As no agreement exists the claimant has not agreed to any terms or conditions and so cannot be in breach of such. Therefore, the defendant has shared bogus financial information with several credit reference agencies including the reporting of defaults, arrears and non payments. The claimant cannot be in breach of contractual obligations where no contract exists.

 

Therefore the claimant claims;

 

1.The refund of all charges and interest levied upon the account plus interest at 8%

2.An order from the court that all entries to the files of Credit Reference Agencies with regard to this account be removed.

3.Compensation in respect of damage done to my credit rating, to be assessed by the court.

Edited February 12, 2010 by johnerog
Room

[johnerog]

any comments anyone?

[flooz]

Sorry John, would love to help you out with constructive stuff, but it's all a bit beyond me. I'm sure there'll be someone that's in the know though.

[diddydicky]

you made payments to the creditor in circumstance where you were not required to make them

 

i THINK that it will be ruled that you therefore made a GIFT of those monies to the creditor

[johnerog]

you made payments to the creditor in circumstance where you were not required to make them

 

i THINK that it will be ruled that you therefore made a GIFT of those monies to the creditor

 

Hi DD

 

My defence to that would be that I was acting on erroneous information and demands from Cap One. ie. Statements of account.

However; I would not ask for the return of the money subtracted from the balance just the interest and charges made. Plus interest.

 

I would also argue that I was ingnorant of my rights at that time and that the CCA of 1974 is there to protect the innocent or unworldly.

 

John

[diddydicky]

correct

[flooz]

I like your way of thinking John, I really hope this goes in your favour.

[enoughisenough]

John in your opinion is taking them to court the only way to get them to listen?/Act?

 

I ask because we have been at stalemate for months now until I challenged their black marks on my credit referencing with the CRA. Like a phoenix from the flames I now have received a letter from them stating in effect that I have defaulted and they are going to make damn sure the world and his wife know about this (i.e my credit reference) for the next six years. All they can do when they haven't got an agreement I suppose. I did seek under CPR 31.16 so they wouldn't be entirely surprised, nor would it be out of place If I did file. Other seasoned caggers have said it's best to adopt a defensive position and wait for them to come after you.

 

I normally wouldn't bother because I'm done with overdrafts loans and credit cards. However I may (more likely) will need to remortgage and this black mark is not helping.

 

Good luck with yours.

[johnerog]

Hello me old mucker.

Sorry about the delay, technical difficulties.

 

I found with Cap 1 that they simply ignored me until I took them to court. They are still trashing my credit record thru CapQuest, hence the new case.

Please remember that I have in writing that they have no agreement and I do not think I would take them on without it, their written admission that is.

 

That said, I will take them for whatever I can now and will not lose any sleep over it. I have no moral problems with this AT ALL.

 

With no contract (admitted) they do not have my permission to share my details and no right to take interest and make charges.

Edited February 19, 2010 by johnerog
add on

[johnerog]

If I issue the following claim in total, could I then ask for a summary judgement on para.1.

john.

 

Anyone help with this-post 305

Thanks. john

[enoughisenough]

Well. Damn right IMHO.

 

I am a little behind the loop ( far too much other more pressing stuff) but can I ask how the hell you squeezed this confession out of them. I suppose if I just hit them a letter a week I could get them very bored with having to deal with this.

 

Sorry for missing your welcomeback. Very generous indeed. Now let's roll out the revolution. The scummy banks have stymied the charges but that will come back. The supreme court gave them a propaganda victory not a legal one.

[johnerog]

Well. Damn right IMHO.

 

I am a little behind the loop ( far too much other more pressing stuff) but can I ask how the hell you squeezed this confession out of them. I suppose if I just hit them a letter a week I could get them very bored with having to deal with this.

 

 

 

 

 

 

I spent £75 on a 31.16 order to produce. I got my £75 back and 20 quid for petrol. They caved in the day before the hearing.

Have a look at the very first post.

John

Edited February 19, 2010 by johnerog
spacing

[Alphageek]

I wish I could find my copy of this same letter! However I don't need to.

 

I'll just reconstitute this letter as being the sort of letter I would have if I could find it (isn't that what reconstituting is all about?)

 

BD

 

LOL - I'd go for it BD :grin:

[johnerog]

Sorry about the delay. Comments please.

 

 

Statement. Capital One Bank V Johnerog.

 

1. On the 11th September 2009 the Claimant issued proceedings against the Defendant, [Claim No. xxxxxxxx] under Civil Procedure Rules 31-16, requiring the Defendant to produce a signed, correctly executed regulated agreement numbered. xxxxxxxxxxxxxxx

 

2. The hearing was set for 28th October 2009.

 

3. In an e-mail dated 26th October 2009 the Defendants admitted they did not have a signed agreement.

 

4. On the 27th October 2009 the Defendants agreed to pay the Claimants costs.

 

5. On the 28th October 2009 the District Judge agreed to vacate the hearing and ordered the Defendants to pay the Claimants agreed costs within 14 days.

 

6. In a letter dated 25th November 2009 the Defendants stated:

“we are unable, and will not be able to, provide a copy of the signature page of an executed credit agreement”

 

7. Also in the letter of the 25th the defendants state that they intend to:

a. Continue to request payment on a non-existent agreement.

b. Report my private details to Credit Reference Agencies without my permission and against my wishes.

c. Serve default notices and report them to Credit Reference Agencies.

d. Sell the alleged debt to Debt Collection Agencies.

 

Unexecuted Credit Agreements.

 

8. It is respectfully submitted that as no signed contract, containing prescribed terms and signed by both the Creditor and Debtor in the format set out by the 1974 Consumer Credit Act and 1983 Amendments exists, the court is precluded from issuing an enforcement order via s127 of the 1974 Act.

 

9. Therefore; the Claimant requests that the court use its powers under s142 of the Consumer Credit Act to determine rights of parties.

 

Data Protection Issues.

 

10. It is the contention of the Claimant that the Defendant has and is unlawfully processing data in breach of the 1998 Data Protection Act [The Act] by passing erroneous information to third party, credit reference agencies.

 

11. The Defendant, knowing that no legal agreement exists between the Defendant and the Claimant, but continuing to report an account in the Claimants name as in arrears, is failing in its duty to process data as required under Schedule 1, part 2, s7 of The Act.

 

12. As there is no lawful contract between the Claimant and Defendant the Defendant is now, and always has, been processing the claimants personal details unlawfully and with no legitimate interest; in contravention of Schedule 1, part 2, s9 of The Act.

 

13. In both the e-mail of the 26th of October and the letter of the 25th of November the Defendant has acknowledged that no signed contract exists, therefore; as the Defendants knew there was no basis in law for the recovery of any money under a non-existent agreement it is against both the spirit and letter of the law for a creditor to continue to process data, including allegations of bad faith, (that is, a default or arrears on a credit agreement), rendered unenforceable by law.

 

14. It is respectfully submitted that a debt rendered unenforceable in the courts by the express will of Parliament should not be enforced by any means whatsoever, and that protection rendered by virtue of the Consumer Credit Act should protect the Claimant against unfounded allegations of default or arrears made by the Defendant. The attention of the court is respectfully drawn to Wilson V Roberts [2005] EWHC1425 (CH) thus:

 

‘What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step.’

Edited March 2, 2010 by johnerog
spacing

[basa48]

.............The attention of the court is respectfully drawn to Wilson V Roberts [2005] EWHC1425 (CH) thus:

 

‘What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step.’

 

That would be Wilson v Robertson [2005] EWCH 1425 (CH).

[flooz]

I'm not an expert by any stretch of the imagination, but that sounds really good John!

[foolishgirl]

The best draft yet johnerog - this looks up to the mark to me.

[Desperate Daniella]

As the Claimant, wouldn't your name go first on the Statement, ie Johnerog V Capital One Bank ?

 

There are a couple of apostrophes missing - Claimant's in 4 and 5, 11 and 12.

 

I think it's absolutely brilliant.

 

DD