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Have just received a defence from my building society and a counterclaim?!!!!
What is this all about? What do I do? Am I going to end up owing money?
There are 21 points of defence and then from 22 the counterclaim starts.
'23.In the premises, the Claimant claims, as a matter of contractual entitlement, its legal and admin costs of these proceedings, interest on those costs and expenses and any other as may be necessary or desirable'.
Sounds fairly standard stuff. I wouldn't worry about it. The charges are unlawful and therefore there is no defnce. That would then rule out a counterclaim. It won't get to that stage anyway
Abbey £4340.59 *WON* Jan 07
Abbey II MCOL 31/03/07 £8800.00
Please note..I AM NOT AN EXPERT ANYTHING WHAT I POST IS PURELY MY OPINION AND MAY BE WRONG IT IS JUST BASED ON MY UNDERSTANDING OR EXPERIENCE
'23.In the premises, the Claimant claims, as a matter of contractual entitlement, its legal and admin costs of these proceedings, interest on those costs and expenses and any other as may be necessary or desirable'
This is appalling. They are (IMHO) threatening you. If you continue your case, they'll sue for their costs? Bullying.
Don't panic. It's a small claim ('no costs rule'). And in any event, they have to successfully defend to get anything?
Truly the behaviour of weasels?
"Weasel (n): any person or group that operates in that vast grey area between good ethical behaviour and the sort of activities that might send you to jail".
I have already had a successful claim with HSBC for £1700, then it comes to my small local building society - The Cumberland Building Society for a measly £220 including court costs and they're taking it all the way!
I am claiming for 5 charges on my cashcard account, due to failed D/Ds.
The following arte some parts of the defence (let me know if I should put it all on); What do you think?...
5. It is denied that the charges levied are unreasonable with the meaning of the Supply of Goods and Services Act 1982 section 15.
7. On true construction of that sectionm, such a term is only implied where there is no provision in the contract for the cost to be determined. In the present case there are clear terms in the contract for determination of the charges payable on the account, which terms have been complied with. In the premises the section does not apply.
10. There is a cost to the Defendant in running, monitoring and maintaing cashcard accounts. These costs range from the initial setup of the IT hard and software to monitor the accounts to maintenance of these systems, staff costs and office overheads. The infrastructure is in place to ensure that the accounts are run within the terms and consitions which apply to them and that such accounts do not go into overdraft.
11.Where a customer attempts to make a payment from the accounts by direct debit or standing order and there are insufficient funds int he account, that payment is not made. A charge is then made to the account to cover the admin expenses of monitoring the account and dealing with the returned payment. The charge also covers the work involved in following up those cases that go overdrawn where the customer does not make attempts to bring the account back into credit, including cancelled instructions for payments that are regularly missed. Where the follow ups produce no response, further work is invloved in closing the account, 'writing off' the overdrawn balance and writing to the customer to confirm actions taken.
(I have always put money into the accoutn the day after the failed D/Ds so I don't understand this - the account is still active and in use).
20.Schedule 2 (1)(e) provides that terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation MAY, not must, be regarded as unfair. It is averted that the terms imposing charges in this case do not require customers to pay disproportionately high sums given the context and/or should not be regarded as unfair.
21. In the premises it is denied that the Claimant is entitled to the relief claimed or any relief.
COUNTERCLAIM
22.Under Clause 8.1 of the Investment and Current account conditions which apply to this account, the Defendant is entitled to charge the Claimant for any loss or expense suffered by the Defendant in connection with this account. Such loss and expense includes the legal and administrative costs and expenses of these proceedings.
23.In the premises, the Claimant claims as a mater of contractual entitlement its legal and admin costs of these proceedings limited to £300.
24.Further the Claimant claims interest on those costs and expenses under section 69 of County Courts Act 1984 at such rate and for such period as the Court shall deem fit.
AND the defendant counterclaims:
(1) Costs and expenses as a matter of contract as set out in Paragraph 23 herein;
(2)Interest
(3)Alternatively to (2) the costs of these proceedings as a matter of discretion of the Court;
(4)Such further or other relief as may be necessary or desirable.
What do you guys think?
What do I do next? Am I supposed to respond and if so how?
Im now thinking of getting one of these companies that do it all for you involved even though they take a chunk of it.
10. There is a cost to the Defendant in running, monitoring and maintaing cashcard accounts. These costs range from the initial setup of the IT hard and software to monitor the accounts to maintenance of these systems, staff costs and office overheads. The infrastructure is in place to ensure that the accounts are run within the terms and consitions which apply to them and that such accounts do not go into overdraft.
Makes it sound like they have setup these systems especially for your use.
Well I know from experience how long it takes to set up a new user and it doesn't even get to £1 and overhead and monitoring costs, don't make me laugh.
If they claim the costs of applying the charges then they will still owe you moeny unless they say the costs are more than they have already charged you.
bearing in mind the recent publicicty from the OFT (Apr 06), Whislteblower and other stuff its extremely unlikley they would have muich luck.
As Zoot says respond to the counterclaim but i thik Natwest and Egg as a matter of routine counterclaim and then settle.
Not to be taken lightly but it is failry standard
Glenn
Kick the shAbbey Habit
Where were you? Next time please
Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
Abbey 2nd claim, two Accs - claim issued 30-03-07 Barclaycard - Settled cheque received
Egg 2 accounts ID sent 29/07 Co-op Claim issued 30-03-07
GE Capital (Store Cards) ICO says theyve been naughty
MBNA - Settled in Full
GE Capital (1st National) Settled
Lombard Bank - SAR sent 16.02.07
MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
I suspect Arkanara had a confidentiality clause otherwise we'd have heard by now. The fact that she's not posted means she didn't go to court. But at least you can see their tactics and be prepared for a drawn out battle.
Did you get an allocation questionairre? If not still send the Draft Orders for Directions as that may speed things up a little if the judge adopts them.
Further to paragraph 8.1 of the Defendant’s defence it is submitted by the Claimant that it was not in the contemplation of the parties nor was it anticipated that such a clause could be relied upon by the Defendant to require the claimant to indemnify the Defendant in the event that the Claimant were to challenge the fairness of the terms of the contract.
It is further submitted that clause 8.1 of the contract which the Defendant seeks to rely on to recover their legal costs is an unfair term under s.4 of the Unfair Contracts Terms Act 1977. It is respectfully submitted by the claimant that such a term should be regarded as unreasonable under s.11 of the said Act, as even if the claimant were to succeed in these proceedings, the term would effectively deprive the claimant of a remedy and indeed could leave the claimant open to pay further costs.
The Claimant respectfully asks the court to strike out the defendant’s counterclaim as it represents an abuse of the court process in that it is intimidatory to the claimant, aimed at pressuring the claimant into withdrawing her claim and is in direct conflict with the Civil Procedure Rules.
Under the Overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. To allow the Defendant’s counterclaim for costs would put the Claimant at a substantial disadvantage to the defendant in that the claimant has no reciprocal right to claim costs under the contract and is thus unable to obtain legal advice and representation for her claim. Also as a litigant in person the Claimant is already at a substantial disadvantage as the Defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of her claim and feels she has no option but to proceed. The claimant and her family would be caused financial hardship should the court allow the defendant’s counter claim.
As the claim is under the 5K limit it was the Claimant's understanding in submitting the claim that they would not be liable to pay the Defendant's legal costs in accordance with CPR 27.14. Thus to allow the Defendant's counter claim would be grossly unfair.
It is further submitted that clause 8.1 of the contract is an unfair term under the Unfair Terms in Consumer Contracts Regulations of 1999. Iis within the ambit of UTCCR as it does not relate to the core terms outlined in Reg 6(2), it is in relation to a consumer contract and was not individually negotiated. The unfairness of a contractual term under Reg 5 requires the term to be contrary to good faith and cause a significant imbalance in the parties rights and obligations to the detriment of the consumer. Good faith includes a consideration of the making and substance of the contract and the overall objectives of the Regulations.
It is submitted that the Respondent, in seeking to make itself impenetrable to legal challenge, has acted contrary to the requirement of good faith.
This causes an obvious and significant imbalance in the parties rights under the contract as outlined in paras 3-5 above
It is further submitted that clause 8.1 is within the indicative list contained in sch 2 UTCCR 1999. Under Sch 2 (1) (q) a contractual term which excludes or hinders the consumer’s rights to take legal action is indicative of an unfair term. It is thus submitted that a clause requiring the Claimant to indemnify the Defendant for legal proceedings commenced by the Claimant to challenge the fairness of the terms of the contract represents an exclusion or at the least a hindrance of the Claimant’s right to take legal action since the effect is to deprive her of a remedy and in effect to prevent legal challenge at all.
For these reasons it is denied that the Defendant has a contractual entitlement to legal and administrative costs in these proceedings.
It is further denied that the Defendant is entitled to interest on the legal and administrative costs.
STATEMENT OF TRUTH
I believe the facts stated within this defence to be true and comprising of X pages.
The only documentation I have received has been the paper version of the MCOL I filed. When will I get a court date and told that it has been transferred?
Also if I send it to the local court, who do I address it to -which department etc?
You should get a notification of transfer in the next few days. Best to wait until you know exactly what court it will be transferred to before sending.
Address it to the court manager unless the notification of transfer specifies a person who will be dealing with your claim.
I hope they do settle before court... its quite funny - the local paper had last week in the financial section a large a artical advising people how to claim back their fees and below that was a weekly article written by and sponsered by the Cumberland Building Soc!
Also, I have seen on another post that the following paragraphs be put in sec G - Other Info - what do you think?
Section G/H - other information
The Claimant respectfully suggests that special directions may be made as per the attached draft order.
The Claimant believes the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute (as detailed below), and allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.
- The crux upon which this claim rests is the true loss suffered by the Defendant as a result of the contractual breach from which its charges arise. If the Defendant cannot substantiate the cost of each charge as proportionate to its loss incurred, it has charged contractual penalties contrary to the Unfair Terms in Consumer Contracts Regulations 1999 and common law principles established since the early 1900's.
- In the event that the Defendant's charges were accepted as being a fee for a service (which is refuted), examination of its true costs is required to determine whether the price is reasonable as required by the Supply of Goods and Services Act 1982.
The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, that it is imcumbent on it to disclose such information. Further, the proposed directions are already routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.
As the law relating to contractual penalties is long established, the Claimant believes the outstanding issues to be of fact. Accordingly, the Claimant respectfully requests that this claim be allocated to the small claims track, and estimates that the hearing of the claim should last no longer than one hour.
I have received a copy of the banks allocation questionnaire, however they are saying that they haven't received a copy of mine, although the court definately have.
Will this hinder the case or can it be thrown out because they haven't received a copy of the allocation questionnaire?
OMG - Please Help - Bank Counter Claim?!
costs of these proceedings, interest
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