PPI Reclaiming discussion Part II

tiggrae

YEOSAL wrote: »

Even if it does get allocated to the small claims court, I thought because of the value of the claim, costs can still be awarded? They claim that my calculations are wrong. Should I also wait til I hear more from the court before sending other calculations to them?

In their defence, apart from the obvious time barred point, they state that they are unable to admit or deny that we were told the ppi was conditional to getting the loan and the the claimant is required to prove the same. Also "it is denied that the defendant owed the claimant any duty of care whether as alleged or otherwise".

What is that all about!!

Hi just off out now but the following is the law on Negligent misprepresentation - see the last bit - as you will see the onus is upon the defendant to prove they didn't make the representation - go back to them and quote 'under statute / case law (Lord Denning 1976) under Esso vs Marden 1976 - the burden of proof required has passed from the claimant to the defendant and as you've already stated, on behalf of your client you are unable to deny the claimant was informed the ppi was conditional, this under the above mentioned case law is tantamout to an admission of negligent misprepresentation.

As to duty of care as you see from the case law 'if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable'

• Negligent misrepresentation at common law occurs when the defendant carelessly makes a representation while having no reasonable basis to believe it to be true. This type of misrepresentation is relatively new and was introduced to allow damages in situations where neither a collateral contract nor fraud is found. It was first seen in the case of Hedley Byrne v. Heller [1964] A.C. 465 where the court found that a statement made negligently that was relied upon can be actionable in tort. Lord Denning in Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 108 however, transported the tort into contract law, stating the rule as:

if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable

• Negligent misrepresentation under Statute, enacted by the Misrepresentation Act 1967. When dealing with a negligent misrepresentation it is most lucrative[5] (joint with fraudulent misrepresentation, Contributory Negligence notwithstanding[6]) for an action to be brought under statute law as the burden of proof that is required passes to the person who made the statement.

So it is for the person who made the negligent statement to prove that the statement was either not one of fact but opinion and that "had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true"[7] - the so-called innocent defence.

homer_j_3

Angel1972 wrote: »

Thanks Tiggrae for your help - even though it's not what i wanted to hear.

How easy is the county court process? I was hoping GE Finance would at least respond to the partial refund request as I have a letter from them offfering me this option if I wrote to the address in the letter but they've ignored 2 letters now.

Does it make a difference that it was actually First National the original loan was with and they were taken over by GE Finance?

Have a look at this thread

http://forums.moneysavingexpert.com/showthread.html?t=930311

Your loan seems to have some issues that could be covered here.

YEOSAL

Thank you for the info.

Some of the points you made is how I thought about it, but having the full information to hand is great. I will send them a letter and see how they wriggle out of it.

All of their letters and court defence is a bit iffy.

tiggrae

YEOSAL wrote: »

Thank you for the info.

Some of the points you made is how I thought about it, but having the full information to hand is great. I will send them a letter and see how they wriggle out of it.

All of their letters and court defence is a bit iffy.

you also need to hit them with a request for further information under Civil Procedure Rule 18 - ask them about their procedures - look at the report by the FSA November 2005 into the PPI market, they list a number of failings in good procedure - serve a notice on them that you require copies of all the procedures in place at the time of sale (list them from the report).

Angel1972

homer_j wrote: »

Have a look at this thread

http://forums.moneysavingexpert.com/showthread.html?t=930311

Your loan seems to have some issues that could be covered here.

How can this help me? I think I am getting in over my head with Negligent Acts that I don't know where I download from to read, going to court and missold loans.

All I know is that I have a form that does not have the box ticked for PPI but I was charged £6000 for PPI, I was offered a partial refund after the loan was repaid but when I wrote off for it received no response.

I just want my money back but it all seems so complicated.

sarahc5388

sarahc5388 wrote: »

Sent the letter on Sat 7 Jun, they have sent a reply dated Mon 9 Jun 08 - Post office track and trace says my letter to them was delivered on tue 10 jun 08 - how can they reply before they got the letter?

I have included this in the next letter:

References:

A. Your xxxxxx dated 9 Jun 08.
B. My letter to you dated 7 Jun 08.

Thank you for your very very swift response at Reference A, to my letter (Reference B, copy enclosed)) which you received on Tue 10 Jun 08. I would like to reiterate the following:

Should I cut and paste the post office page showing when it was delivered?

anyone got any advice - before I send this - is it up to them to challenge the post office when they say they delivered the letter - surely the post office wouldn't get it wrong!!!

TwinsMum_2

marshallka wrote: »

Twinsmum, wasn't it you that won against firstplus??. Laini has won her claim too but is waiting for the money from them. How long before they paid up with you. I think she is having problems actually getting the money. Your input might be reassuring.

I emailed the MD every half hour or so until he agreed to do it quicker, was quoted 6 weeks to begin with got it down 1 week with all my emails lol. Just trying to reclaim now from HFC for my husband and they are not being very helpful.

sarahc5388

Angel1972 wrote: »

How can this help me? I think I am getting in over my head with Negligent Acts that I don't know where I download from to read, going to court and missold loans.

All I know is that I have a form that does not have the box ticked for PPI but I was charged £6000 for PPI, I was offered a partial refund after the loan was repaid but when I wrote off for it received no response.

I just want my money back but it all seems so complicated.

Have you spoke to them? did they send you the copy of the agreement that has the box unticked?

angelwillow

rozzid wrote: »

I'd like a bit of advice please - I have gone through the letter, FOS route and been told that because the lender was not regulated by the Financial Services Authority as an insurance intermediary at the time my loan and £2520 PPI was taken out that they can't help me further. But I am still adament that this policy was mis sold. Does anyone know if there is anything else I can do? Should I go back to Capital One directly or is there little point as the Ombudsman has told me they can't help. I WANT MY MONEY BACK and it all seems so unfair - is it my fault that they weren't regulated at the time??

How long did the FO take to get back to you? I have a complaint with them against Capital One since March and am just wondering if I will have to wait months just to be told the same thing.

Angel1972

sarahc5388 wrote: »

Have you spoke to them? did they send you the copy of the agreement that has the box unticked?

Yes they sent me a copy of the agreement - and I then found some original paperwork when I was sorting out settlement of the loan and it was my solicitor who was doing my conveyancing that pointed out no tick in the box but a charge on the agreement and then after reading MSE I found that I would have been ineligble for cover due to previous medical conditions.

I have sent copies of the agreement back to GE Finance with this pointed out and I am just being ignored - their last letter was dated 25th January 2008 when they said they would respond in 4 weeks and they haven't.