Higgzy vs Cap1 - Advice appreciated

[Higgzy]

bump plssss

[Higgzy]

bump pls

[Higgzy]

Computer froze..... soz for so many bumps.

[silverfox1961]

Hi,

Can't offer much but I bet Cap1 will try for a set-aside due to adverse weather conditions. If they don't try for the set aside, they will have to pay up

[Higgzy]

Hi Fox, no worrys, do you know an email address i can contact cap1 exec office?

[silverfox1961]

I don't think they have an email address. I've looked at their website and they only give the postal address which you should already have

[Still_surviving]

That offer letter doesnt mean they have dealt with your proceedings correctly, however as mentioned above, they will probably go for a set aside (and get it).

 

Its decision time after this, assuming you wont be accepting their offer. Your case will only be won if you are rock solid in your understanding of penalty charges, restitutionary interest and the court process. Assuming they get a set aside, and the case gets allocated, you will need to prepare a good court bundle and show them you wont back down.

 

IMHO they wont think of paying up properly until they had sight of your ability to prepare a strong case - then they may very well increase their offer 'on the court steps'.

[Higgzy]

That offer letter doesnt mean they have dealt with your proceedings correctly, however as mentioned above, they will probably go for a set aside (and get it).

 

Its decision time after this, assuming you wont be accepting their offer. Your case will only be won if you are rock solid in your understanding of penalty charges, restitutionary interest and the court process. Assuming they get a set aside, and the case gets allocated, you will need to prepare a good court bundle and show them you wont back down.

 

IMHO they wont think of paying up properly until they had sight of your ability to prepare a strong case - then they may very well increase their offer 'on the court steps'.

 

Thanks for the info. So shall i just hang on and wait or do i need to write them a letter to say im not accepting their offer? I know my calculations are correct. They are saying that i have incorrectly calc'd interest but i am claiming contractual interest at 29% on the penalty fees charged, compounded monthly. They are calculating the interest i actually paid. This has then made them calculate the 8% stat interest a lot less. If i do need to send them a letter back, any help will be greatly appreiciated. Thanks, higgs.

[Bigdebtor]

Higzy

 

Why is the interest you actually paid less than their 29% contractual rate?

 

Is it because you frequently had paid off all the balance, and so were getting the last few weeks from statement date until payment date interest free ? If so, they may have a point in that your loss was only the interest you had paid (plus of course all charges levied ).

 

However if you still had other debts that were charging you 29% or more then IMHO you are still entitled to charge them this - as your overall balance owing (on other debts) would have been that much less if they hadn't charged their unfair charges.

 

Hope this makes sense?

 

BD

[Higgzy]

Hi BD

 

I always had a balance of around 300, i was penalised £40 nearly every month (20 for being over limit / 20 for paying late). What they are saying is i am entitled to the interest back i actually paid on these defaults (although they have only gone back six years). Am i right in claiming 29% compound interest on the £40s?

 

In regards to the limitation act i was going to resend them a letter sent a while ago, which contains:

 

I note your comments regarding the Limitations Act 1980 and I would like to draw your attention to section 32 of the Act as outlined below:

 

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

Continued……

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have

become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from 2004 when you first begun to impose such unfair default charges.

 

what do you think?

[Bigdebtor]

hi bd

 

i always had a balance of around 300, i was penalised £40 nearly every month (20 for being over limit / 20 for paying late). What they are saying is i am entitled to the interest back i actually paid on these defaults (although they have only gone back six years). Am i right in claiming 29% compound interest on the £40s?

 

I'm not absolutely sure - since you actually kept your balance at about £300, you must have paid off a lot of these £40's. Did you have other high interest debts at the same time and ongoing? If so, I would claim these stayed so much in the red because of these monthly £40 charges - so their interest is also reclaimable from cr*p one. I have similar situation and would be really intereste din what others think on this point.

 

In regards to the limitation act i was going to resend them a letter sent a while ago, which contains:

 

i note your comments regarding the limitations act 1980 and i would like to draw your attention to section 32 of the act as outlined below:

 

(1) .... Where in the case of any action for which a period of limitation is prescribed by this act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) for the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of kleinwort benson -v- lincoln city council & others in the house of lords on 29 october 1998 their lordships ruled:

 

· if a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· the party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

Continued……

 

 

the court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have

become evident. It is my assertion that i could not, with reasonable diligence, have discovered this issue before april 2006, this being the date of publication of the office of fair trading referred to by you, and so the period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from 2004 when you first begun to impose such unfair default charges.

 

What do you think?

 

See answer to first point above in bold.

 

I agree totally with this second point.

 

BD

[Still_surviving]

Higgzy

 

Try and get clear in your head just what restitutionary interest is all about.

 

Cap One have taken your money in nice little £20 or £12 nibbles and used it to make profits. Whether that profit was earned on your card, or by lending out to others, they have earned at your expense.

 

The fact that they may have stopped charging interest on the charges on your card as soon as you make a payment, is only relevant to their calculations of purchase interest not restitutionary interest. Theyve got your money - you want it back together with the profits earned on it.

[Bigdebtor]

So it looks as if you can charge THEM the interest they have charged OTHERS on money which they have unfairly kept back from you, and stilol refus eto refund to you - irrespective of whether you actually paid this - or whether it was paid by a third party. As S-S says, you've got to bone up thoroughly on restitution etc. and ensure your case is so strong they'll back down - but probably only on the court steps.

 

I'm a couple of stages behind you in going after Capital One - so watching your progress with great interest!

 

BD