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  1. The Amended Particulars Of Claim that was used in this case. In the xxxxxxxxxx County Court Claim number xxxxxxxxx Between HomerJSimpson Claimant and Close Premium Finance Defendant Amended Particulars of Claim Part 1 Introduction This is not a Bank Charges claim. The Charges which are the subject to this claimhave nothing to do with the Supreme Court ruling against the Personal Current Accountproviders - Eight British banks and others. ( OFT v Abbey etc.) Because this claim is notaffected by the Supreme Court decision, all parts of this claim remain open for determination by the Court, Penalties, UTCCR Regs 5 and 6 etc. The Defendants have themselves admitted that the Charges are not bank charges. This claim is brought for the refund of money paid under a mistake and for restitutionary damages or for interest under s.69 County Court Act 1984. This claim is brought under reg.6 of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) and alternatively under reg.5 UTCCR Alternatively this claim is brought on the basis of a contractual misrepresentation by the Defendant. This claim is also brought for breach of Statutory Duty. The Claimant’s position is that either the Late Payment charges which the Defendant imposes on it customers are not part of their core business and are so excessively high that they are wholly disproportionate to their costs and are therefore unfair under reg.6 UTCCR, or That the Defendant occupies a dominant position in relation t the claimant and has operated its dominant position contrary to the requirements of good faith by misrepresenting the true nature of its Late Payment charges per reg.5 UTTCR or That the Defendant has made a contractual misrepresentation Part 2 The Parties The Defendant is an insurance premium finance provider offering running account credit agreements for clients to finance their insurance policies. The Defendant is regulated by the Financial Services Authority and are subject to the obligations contained in the FSA Conduct Of Business Sourcebook, implemented under the Financial Services And Markets Act 2000. The Claimant arranged his insurance cover through a broker, xxxxxxxxx, who offered the defendants, Close Premium Finance as a finance company which would allow the payment of the insurance premiums by instalments. The Claimant entered into two Running Account Credit Agreements, xxxxxxxxx and xxxxxxxxxx with the Defendant as detailed in Schedule 1 attached. The loans were provided under the Defendants’ own standard Terms and Conditions. Between August 2002 and September 2007 the Claimant incurred late payment charges totalling £240.00 The Defendant’s charges are expressed by them to be their costs for representing failed direct debit payments (Representation Charges). The Defendant finance company reserves to itself the right to levy Charges it describes as “administrative expenses”, “default fee”, “default”, “defaults/non-payments”. Part 3 The Defendants’ dominant position. The Defendants are a major finance company and part of the Close Brothers group. The Defendants operate on their own standard terms and conditions which are imposed upon the customer. There is no opportunity for the customer to object or to renegotiate any aspect of the finance contract. There is no element of mutuality or reciprocity within the contract. The Defendant finance company occupies a dominant and superior position to the Customer because they are fully informed as to the true nature and level of the operations (or activities) and also the true cost of dealing with Customer Late Payment episodes, and yet refuse to reveal or disclose in any way the mechanisms involved or the true costs associated with Customer Late Payment episodes. The Defendant reserves to itself the right to levy charges it describes as “Administrative Charges” and elsewhere “Representation Charges” and which they claim are calculated to either, as stated in the Terms and Conditions of the agreements; However the Defendant levies these Charges against its Customers without any proper explanation as to how the costs are derived and so that the Customer is obliged to accept the Defendants generalised explanation of their charges at face value. The Customer is therefore obliged to repose faith in the integrity and straight dealing of the Defendant because of the Defendants superior position in the contract. Part 4 The Defendants’ misrepresentation”. The Defendant’s contract states that; 6. The Customer may in certain circumstances become liable to pay to the Bank additional charges (including default interest). Details of these are set out in paragraph 9 of these conditions. 9.The Customer shall indemnify the Bank as a separate, continuing and primary obligation on demand for : (a) all reasonable costs and expenses directly or indirectly incurred by the Bank in connection with any failure by the Customer to pay any amount due in respect of the Account ; and (b) all internal management and administrative costs incurred by the Bank in responding to and dealing with enquiries and/or requests of the Customer relating to the administration of the Account, and further if the Customer fails to make a monthly payment or pay any other amount on the date that it is due, the Customer shall on demand pay default interest on the unpaid amount from time to time until such amount is paid, calculated daily at the rate stated overleaf (as varied from time to time).” The Defendant has also told the Claimant that:- “The law allows us to impose default charges which are a “reasonable pre-estimate” of our costs for dealing with your account once it falls into arrears. This includes the administrative, staffing and systems cost of communicating with you about the state of your account, answering any additional queries you may have and/or renegotiating your loan. Our default fee has been calculated in view of our legal position and the costs we are legally entitled to recover from you under the law of contract and under the terms of the agreement between us”. A study commissioned by the BBC in 2006 found that the episodes of the type for which the Defendant imposes default fees typically cost a maximum of £4.50 per episode. The OFT conducted a study into the fairness of the level and application of unauthorised charges in April 2007. The subsequent OFT July 2008 report found a number of concerns they believed needed addressing: 1. Low levels of transparency over charges and costs, coupled with a high proportion of banks’ total revenues made on charges and costs. 2. The complexity of the charges makes it harder for consumers to control the costs they incur. 3. A significant group of consumers underestimate the level and frequency of banks’ charges, and 4. A general perception among consumers, not completely unfounded, that switching is complex and risky, contributing to low levels of switching between banks. (Although this study applied particularly to banks, it is submitted that the principles of the study and the results are applicable to other companies within the finance industry which operate excessive charging regimes.) Claim under regulation 6 of The Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. The Defendants Charges are not part of their core business. They are incidental or remedial Charges and are unfairly high. They are therefore invalid under UTCCR . Claim under regulation 5 of The Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. The Defendant has abused its dominant position by misrepresenting the nature of their charges. This is contrary to the requirement of good faith, and as a result of this the Claimant has suffered detriment. Therefore it is submitted that the Defendants charging regime is invalid. Contractual Misrepresentation. The Defendant has misrepresented the nature of their Charges, the Claimant relied upon the Defendants representations because he believed that he had caused losses to the Defendant, and that he had an obligation to indemnify the Defendant for those losses. If the Claimant had appreciated the excessive nature of the Defendants Charges, he would have investigated making his finance arrangements elsewhere. Breach of Statutory Duty. The Defendant is regulated by the Financial Services Authority under The Financial Services And Markets Act 2000 and is subject to obligations contained in the FSA Conduct Of Business Sourcebook. Under Regulation 4.2 of the Sourcebook the Defendant is required to ensure that they communicate with their clients fairly,clearly and in a way which is not misleading. By misrepresenting the nature of it’s charges both in it’s Terms and Conditions, and in it’s correspondence to the Claimant, the Defendant has breached their statutory obligations. The Claimant claims: (a) The return of all charges paid, (b) Court costs, © Restitutionary damages, or (d) Interest under section 69 of The County Courts Act 1984. (e) A declaration that the Defendant has breached their obligations contained in the FSA Sourcebook. Statement of Truth. I, HomerJSimpson of xx xxxxxxx xxxxxxx xxxxxxxX, believes that the facts stated in these particulars of claim are true, to the best of my knowledge and belief. ___________________________ HomerJSimpson Claimant 11th March 2010
  2. Thanks to everyone for your encouraging comments:D This site is amazing, I can't believe the help and assistance I've received. It's not over yet, or so Close would have me believe, but I'm really quite enjoying this. HJS
  3. Yesterday, 27th May 2010, I received a response from the Court to my letter I delivered 13th May 2010 asking for the DJ to not make his decision on setting aside my Judgment based on the Defendants letter alone. The DJ said I should see a copy of the letter the Court had sent to Close Premium Finance on 12th May 2010. This letter was in response to Close's very disrespectfull complaint about the conduct of the claim, and the Courts conduct. The letter stated........... In response to your letter dated 30.4.10 in respect of this case. Your letter was placed before District Judge XXXX who has stated that the Defendant's letter dated 29.3.10 cannot be deemed to be an amended defence. The Defendant must apply on notice to set aside judgment. If you have read the BBC article and seen the comments by Close Premium Finance............ That will be the administrative error by the Court then. HJS
  4. 19th May 2010 I received a letter from the Court. My Warrant was granted and transferred to Kingston - Upon - Thames Court for the bailiffs to execute. Pity it wasn't a literal execution. I tried to contact the bailiffs on numerous occasions, but had no success. :? Wednesday 26th May 2010 I finally spoke to the bailiff, a very nice lady bailiff who told me a cheque arrived from Close Premium Finance on the previous day. She seemed surprised because she had spoken to Close and they told her they would not be paying as they were applying to have the Judgment set aside. But they paid up.:? I shall expect my cheque once Close Premium Finance's cheque to the Court has cleared. They then issue me a Court cheque which won't bounce. This should be sent next Wednesday. HJS
  5. 13th May 2010 I returned to the Court office to hand in an urgent letter to the Court for attention of the DJ explaining that I had waited a full week and an extra day for the Bank Holiday, but had heard nothing from Close Premium Finance. I explained that I had requested a Warrant of Execution on 5th May but had been told by the Court office that the warrant was frozen, pending the DJ's decision about the informal letter Close Premium Finance had faxed to the Court. My letter was very respectfully pointing out that I thought it extremely unfair that the DJ could make a decision on setting aside my still valid Judgment, based solely on the very disrespectfull letter from the Defendants. I was informed that my Warrant had been granted, but as I had taken the time to compose the letter, again with much assistance from CAG,, I submitted the letter anyway. HJS
  6. Cheers bustthematrix, their defence was absolute [email protected], same as before, absolutely agreed. I thought their letter was rather disrespectfull to send to a County Court. I think that the DJ may not have been amused by it. So after reflection and advice from BF, I returned to the Court and applied for a warrant of execution, I still had a valid Judgment, and so I applied via N323 and paid £100 fee to send in the bailiffs. I now just had to wait for the Request to be granted. HJS
  7. I really wanted to include the poor guy's name, but I have a feeling he might be looking for a new job. Anybody ever sent a letter like that to a County Court? I had to wonder what the District Judge would make of it. HJS
  8. 30 April 2010 We have today received details of a judgment against Close Premium Finance in respect of the above claim. We have been advised by your office that the reason for the judgment was that there was no amended defence in the file passed to the District Judge for consideration. We wish to make a request to have this judgment set aside as well as register a formal complaint concerning the conduct of XXXXXXX County Court in relation to this claim. XXXXXXXXX County Court was in receipt of our amended defence by the required date of 29th March 2009 (I think he's got a time machine) and your posession of this defence document was confirmed over in a call with Close Premium Finance at 11.25am on 12th April 2010. The failure by your office to include this document in the file to be passed to the District Judge is the sole reason that judgment has been given against Close Premium Finance. I enclose a further copy of the defence document that was provided, and ask that arrangements be made immediately for the judgment to be set aside so that a decision can be made on all the appropriate documentation. We also ask that you undertake a thorough investigation as to how a document so vital to the defence was misplaced and what failings allowed this to occur. In addition to the judgment being set aside we require a formal apology regarding the conduct of XXXXXXX County Court over this claim. Given previous failings, I require confirmation that this document has been received together with confirmation of when you will respond by return. Should you have any queries regarding any aspect of this communication, please contact me on xxx xxx xxxxx Yours sincerely, Compliance Officer Close Premium Finance
  9. 27th April 2010 I received an order from the Court dated 20th April 2010 awarding me Judgment. The Order was that Close Premium Finance pay me the sum of £402.48 forthwith. Unfortunately I heard nothing from Close Premium Finance and so I waited a full week and an additional day for the Bank Holiday. I visited the Court on 5th May 2010 and asked if any payments or other correspondence had been received from the Defendants, Close Premium Finance. It turned out that the Defendants had sent another letter by fax to the Court on 30th April 2010. Were they sending private correspondence again? I demanded a copy of this secretive letter. This letter was very interesting indeed. HJS
  10. Well, long time no post;) I WON MY CLAIM, BUT IT WAS A LONG BL#*DY SLOG. Close Premium Finance are now just over £500 lighter in their bank balance. I wonder how much time amd money they spent @rsing around pretending to defend this claim though. There is good reason for this, I'll try and explain. On 7th April 2010 I filed my request for Judgment, as I had been told there was no defence or correspondence (including faxes) from the Defendant. By the 19th April 2010 I was getting increasingly concerned that my Judgment was not forthcoming. I enquired with the Court and was told that a letter had been received from the Defendants on 12th April and the file and letter was with the District Judge. Naturally I was concerned that the Defendants letter was before the DJ but my N255 request was not. I had filed my N255 on the 7th April. It transpired that the delay in the Court system meant that the Defendants had faxed a letter to the Court on 29th March 2010, but it was not added to the Courts computer system until 12th April 2010. My N255 request for Judgment was still waiting to go before the DJ. That didn't seem at all fair to me. Were the Defendants receiving priveledged access to the Courts, and sending private correspondence that I was not privvy to? Where were my copies of this correspondence? After asking these questions I received a phone call from the Courts informing me that my N255 request had been sent up to the DJ. On 20th April I collected a copy of the Defendants letter from the Courts. It was a fax sent on 29th March that basically re-itterated their original [email protected] defence that they could charge what they liked, it was in the T&C's and if I'd been a good Homer and had money in my Bank Account, I wouldn't have been charged their fees. Absolutely no justification that their charges were fair, or breakdown of actual costs incurred by them. I was growing increasingly frustrated. HJS
  11. Tonight's Watchdog programme highlighted MET Parkings [problem] with Maccy D's charging you for overstaying or returning to McD's within a timed period. They briefly featured one customer who ignored MET's invoices, the debt collectors letters and the scary solicitors letters. No mention of the unenforcability of these invoices or advice to ignore them. I thought Watchdog were supposed to educate and inform the public.
  12. If they call again ask for Graham White's birth certificate as proof of whom is contacting you. I bet Michael could find one somewhere. Edit.... Does he have a father.....? Michael Sobell - @rsehole trading as Graham White Solicitors:D
  13. Congratulations on getting a partial victory, hope the small sum you paid in full and final settlement was substantially smaller than the claim against you. The tomlin order - is that a gagging clause?
  14. Well, after Royal Mails failure to deliver by Recorded Delivery I decided to accept the second copy of amended POC's sent Special Delivery as the served copy for Court purposes. (Even though I am sure they will have received the first copy.) This has given the Defendants 23 days or a guaranteed 15 days to submit a defence or acknowledge service of my amended POC. I entered the Court offices at opening time this morning and asked if a defence or acknowledgement had been filed. Nothing had been filed, and I asked the Court staff if they could check if any faxes had been received from the defendants. Again nothing had been received. I produced my completed N225 form asking for judgment plus 8% statutory interest. (I had considered using N227 and asking for restitutional damages, but this claim is quite small and was started in Dec 2007. I just want it finished now.) So I guess I just sit and wait now. I think the Defendants would have a damn cheek to try and set aside any judgment now, after ignoring my set aside application to their strikeout request, and ignoring the court order to submit their amended defence. Hopefully if they try any funny business the District Judge's patience will be waring thin with them. So I'm about a week over schedule (Thanks Royal Mail ) but it seems to be going according to plan. Not sure how long it takes for the judgment. Thanks for the advice guys. HJS
  15. Unfortunately Lloyds didn't go bust, Gordon & Allistair saw to that. FSCS is a compensation scheme for when banks etc go bust, no help with hardship claims i'm afraid. The FOS may help, but probably not. FSCS > Home
  16. I was wondering whether maybe it had been delivered. Track and Trace still says the same thing. It doesn't take this long to deliver First Class Recorded Delivery surely. The Special Delivery copy I sent on Friday has been delivered and signed for this morning. Have you received the Court order of 1st March yet ? If not, ask the clerk if you can pop in and collect a copy. As for the Royal Mail... check with them on the phone that this has or not been delivered. If they say not then complete a claim form for the SD postage to be refunded to you. If they havent delivered/obtained a signature then they are obliged to refund the cost of mailing. Both SD and RD postage is touted by the Royal Mail for mailing of legal documents. But so many times they fail to get a signature for one reason or another. Went to Court today and the Order of 1st March was typed up on Friday, should have been sent out. I already know what the Order states because the DJ read aloud as he was writing it. I've been more interested in knowing when the Defendants will receive it. I filed Cert of Service for the copy I sent 11/03/2010 deemed served 15/03/2010. I also filed Cert of Service for the Special Delivery copy I sent 19/03/2010 and deemed served ( and was received ) today. So it seems that the Defendants first knowledge of their strikeout order being overturned will be my amended POC. They would have known about my application, but as they didn't see fit to attend or offer any representation to the hearing, they probably thought my application would be refused. So I think they still have to submit their amended defence by 29 March 2010. The guy who accepted my Certs of Service at the Court said the Court Order timelines will still be binding on the Defendants. I hope that is correct. The Royal Mail issue is a pain, but I will argue this and get some refund or compensation. I'm thinking of charging them for the costs of Special Delivery, as they were unable to prove delivery by the the original Recorded Delivery I had already paid for. Can I charge them for my time in producing another copy and my time spent going to post it again, by Special Delivery? The Royal Mail website states that an item isn't lost until after 15 days, they think this is an acceptable timescale for 1st Class post. Anyway I do hope that the Defendants will be busy amending their defence for filing by 29 March. Lets see what happens. HJS
  17. A lot of us had included Reg 5 of UTCCR in our claims, shame the OFT didn't:rolleyes: [email protected] doesn't reply to complaints personally. He gets an english speaker to fob you off with b)[email protected]:grin: Best of luck. HJS
  18. Tell them to Fax Mr Gordon Brown on 020 7925 0918 He should tell them the country is now full and shut to chancing immigrants. He will probably be after a job himself shortly:D
  19. If your "invoice" or correspondence from these muppets states the word fine then I don't see how it is possibly enforceable. Fines can be issued by the Courts and the Police - Nobody else. Oh and Aintree NHS Trust and Trethowans Solicitors......but I'm still waiting to be taken to Court........Since June 2009.
  20. That does seem strange Frenchy, at least your local Court seems on the ball, I'm still waiting for the order of my hearing on 1st March 2010. From Shabbey at least you're not getting the "We won, sod off" letters, so something may be afoot. I received a letter from HSBC in January telling me "We won, sod off" which tickled me as they paid me £1423 as a gesture of goodwill in 2007:grin: Best of luck, and have you translated your letters and POC into Spanish?;-) HJS
  21. Upon checking Royal Mails website based Track and Trace service it seems that they haven't delivered my amended POC to the Defendants yet - they've only had 8 days bless them:mad: Track & Trace Results Itemxx1234564321GB was posted at xx my street xx1 xxG on 11/03/10 and is being progressed through our network for delivery. I've sent another copy today by Special Delivery but am wondering about the Certificate of Service? I can prove I sent the amended POC by recorded delivery, which should have been deemed served by 15 March 2010. But it may not have been. I've resent it by Special Delivery which should be received by 22 March 2010. I need to file Certificate of Service within 7 days of service of docs. If I can get proof of delivery of SD on Monday, can I still file Cert of Serv on Monday at Court? This is turning into a bit of a mess as I still haven't had the Court Order of 1 March 2010 yet. The Defendants probably haven't received it either. Anyone got any advice please? HJS
  22. :DSome of you really do believe the [email protected] that Tesco are honest and fair. Examples this week alone..... Frozen packs of vegetable spring rolls SEL £1.00.......Charged £1.29 Have had my 58p per pack refunded and the SEL still shows £1.00:eek: Tesco would rather con other customers into thinking they are £1.00 and charge them £1.29 Might go back and buy them again, they're not bad for 71p Yesterday I bought 2 bottles of Bulmers Pear Cider, on offer at £1.00 per bottle. Was charged £1.00 for the first bottle and £3.98 for the second:eek: So Tesco paid me 98p to take them off their hands:D But I check my receipt, most customers don't;) Of course Tesco are honest:rolleyes:
  23. So if you didn't spend £30 at Aldi the fine stands? £30 is a lot to spend at Aldi:lol: Of course Parking Eye and Aldi CAN'T issue fines (penalties-irrecoverable at common law;-))? Best action is Ignore. Then when they contact you again - Ignore some more. If they persist in contacting you, do a bit more Ignoring:grin:
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