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  1. thanks dx... andyorch can you comment please
  2. dx199uk or bankfidder ... any comments or advice please???
  3. Hi all Sent Amex an LBA... they have now completed their review of my complaint and claim that I had signed the agreement so agreed to the terms in them. so ... I have prepared the following POC... I have added to POC others have used ... first by reference to the exception to the statute of limitations ... and then later .. to the claim for restitutional interest... can you please sanity check it and if necessary suggest any change. Particulars of Claim 1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxx ("The Account"). 2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate. 3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974. 4.At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time. Summary 5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2). 6.The default charges were applied in accordance with the standard terms of The Agreement which were: a). A penalty payable on breach of contract and thus unenforceable:and b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant. 7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account. The Charges 8. The standard Terms of the Agreement in substance provided as follows: (a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing. (b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate. (c) The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements. (d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. Penalty 9. The Charges were payable on breach of contract by the Claimant. 10.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions. 11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law. The Regulations 12.At all material times the Claimant was a consumer within the Regulations. 13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant. 14. without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms. (1)The terms relating to Charges were standard terms; they would not be individually negotiated. (2)The Charges were a penalty for breach of contract. (3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment. (4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term. (5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement. (6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges. (7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable. 15.without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters. (1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement. (2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money). (3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers. 16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations. 17.The Defendant wrongly applied Charges to the Account totaling some £105.00 between 24/06/2004 and 05/01/2007. Particulars appear from Schedule 2. 18. On 6th March 2018 the Claimant demanded repayment of the sums wrongly applied, having only recently becoming aware of the mistake which the Defendant had made in applying these charges. 19. The claimant relies on the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 1.(c) of the Limitation Act 1980 in regards to this claim. 20. The Defendant has not repaid them or any of them. And the Claimant claims (1) A declaration that the sums totaling £105.00 have wrongly been applied to the Account (2) Payment of the said sum of £105.00. (3) Interest in restitution based on interest applied by the Defendant at the rate of 14.98% per annum from the date of payment of the Charge to date in the sum of £621.04, and at the daily rate of 14.98% until judgment or sooner payment. (4) Court costs of £60.00. I believe that the facts stated in these particulars are true. Dated
  4. This topic was closed on 10 March 2019. If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there. If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened. - Consumer Action Group
  5. have to disgree im afraid: if they have used it to offset tax then they no longer have my debt and have not declared it as an asset. need to find out...
  6. agreed dx100uk IF the debt exists if the debt exists then it must be on the balance sheet as a debt .. i want to ask them to prove that the debt does still exist, alternatively to repay me the charges.
  7. I am annoyed that Nationwide last year acknowledged my PPI claim but decided that since the 2002 disputed debt still existed they would setoff the PPI refund. I never responded however while I understand that their claim against me is now out of time the alleged debt still exists ... or does it?? Wikipedia says ... The law thus allows both parties to defer payment until their respective claims have been heard in court. This is partly why setoff was introduced... however if no case will be heard how can they initiate setoff?? Additionally... we are all aware that banks use their irrecoverable debts to offset against tax liabilities so it is unlikely that my alleged debt is still on their balance sheet. could i not insist on a dpa response to determine how they dealt with my alleged debt and to prove that the alleged debt still exists on their balance sheet?? Any comments or observations would be welcome.
  8. Im hoping no replies indicate my modifications are ok... I checked the fees for the claim and this made me pause... although the case seems arguable its not certain the judge would rule in my favour and i can ill afford losing £455 ... so i decided to start a smaller claim against Amex which hopefully will provide me with enough to claim against MBNA... Oh well...
  9. Hi all, would be grateful if anyone can do a sanity check on my LBA as follows thanks Account number john doe Credit Card xxxxxxxxxxxxxx Dear Sir/Madam Letter Before Action I sent you a letter in January regarding unfair charges and the refund I expected from you and received a reply from you rejecting my claim. I have subsequently taken advice and realized that I had made a mistake in the spreadsheet I sent for which I apologize and am sending you the revised spreadsheet and my claim detailed below. Following media reports,and an investigation into credit card charges by the Office of Fair Trading,which I have only recently been made aware of, I now understand that the regime of fees which you have been applying/applied to my account in relation to late fees, and over limit charges, are unlawful at Common Law, Statute and Consumer regulations, in that they did not/do not, represent a genuine pre-estimate of your actual costs. I would draw your attention to the terms of the contract which you agreed to at the time that this account was opened. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law and in consideration of fair business practices and good faith. It is my contention, that you have failed to operate my account in a manner conducive to the above, and have demonstrated a lack of fiduciary duty. I calculate that you have taken £200.00 which you have charged me and I require £6,114.92 in restitutional interest to remedy your mistake which total £6,314.92. In recent years Courts have been happy to accept claims for bank charges that exceed 6 years,whilst having regards to the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 1.(c) of the limitation acticon 1980. Should county court action be needed I will be seeking to rely on this. Therefore this letter requests a refund of all charges indicated including interest 14 days from the date of this letter. I request that payment is made directly to me, by cheque, and that any refund in whole or part should not be allocated to any set off or third parties. Should this occur my claim will be deemed as unsettled and I will proceed to the Courts for recovery. You now have 14 days to respond positively, and in the absence of this, I will put you on notice of county court proceedings. I trust this clarifies my position. Yours Faithfully
  10. sorry dx100uk... of course … the risks... i have two claims this is the smaller of the two... but with the higher rate of interest just over 6k is this within small claims?? one further small hopefully complication... i have already sent out a demand using standard template and the two ppi spreadsheets ie interest as charged by them then 8% from that point … and that came to almost 1k i think... i got a bog off letter but im going to have to start the next letter with having taken advice I submitted an incorrect spreadsheet... sigh... less haste....
  11. Guys grappling with the interest to charge... looks like all the charges incurred 2.2071% monthly interest... using http://www.stoozing.com/calculator/apr-rate-converter.php to convert to apr non compounded works out at 26.52% wheras compounded is a massive 29.95% questions: which should i use? and any comments or observations please? thanks
  12. Hi all... I have just re-read this thread and I am disturbed by the way I have been hopping in and out of this thread... my sincere apologies... My father suffered a stroke last April and triggered alhzeimers ... he spent the next six months in hospital while I struggled to fight the system for funding for him and find a care home he deserved... he has two weeks ago worsened and although has marginaly improved ... he is close to the end... so its been a tough twelve months and i am mentally and physically exhausted... I recognise that i need to wrk hard researching my claims to recover any money i can... so i really appreciate your advice and importantly your patience with me.. many many thanks to you all... ill try to do better... thanks
  13. dx100uk ... thank you for your thoughts and advice ... really appreciate it. i have over quite a few years been on a number of occasions reading about restitution .. i even bought an excellent book... there is so much case law around it... we all know though that at the end of the day one person in court will decide on how they see the case ... there is no logical predictable outcome... so preparation is key particularly the arguments you present. My current thinking is that the claim in restiution is to recover the unjust enrichment: so if you accept that the bank took your money off you in mistake and used it in their commercial activities to lend to their customers then the compound interest rate you should use is their average interest rate across the last 15 or so years... or to put it simpler and easier to understand for the judge the apr used at the outset... i was simply curious to understand where slick132 used 24.9 ... i assume tis was the equivalent apr used b barclaycard..
  14. DX100UK... I'm not finding any thread where anyone has been successful... but that does not stop me from trying... I simply wanted to have a reason why i was charging restitutional interest. what arguments would you expect them to deny restitutional interest?? What d you think?? any advice would be really really helpful... thanks
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