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Chris99

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About Chris99

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  1. Hi all I have a claim from CL finance, issued by Cohens for an overdraft consisting mainly of bank charges. The debt was sold on to a debt collecotrs from first direct, then to cl finance and they have issued the claim. I have filed AOS and intend to defend the claim. Could anyone help with the defence please? I contest the amount and the fact that the debt is made up of unlawful bank charges. I did not use the account from august 2007, and recieved no notice of assignment from CL finance. Their POC are as follows: the clamants claim is for the sum of 620.81 being monies due from the defendent to the claimant under an overdrawn bank account originated with HSBC bank plc under reference xxxxxxxx and assigned to the claimant on the 15th dec 2008, notice of which has been given to the defendant. The account was maintained without suffcient funds to meet withdrawals made by the defendant. the claimant claims the sum of 620.81. Any help greatly recieved, I really need to submit this defence in the next couple of days as Iwill be away for the next couple of weeks. Thanks in advance folks.
  2. Thanks Gizmo, I think I will end up renting out the house, my current fixed rate mortgage deal ends in may 08 so, I'm hoping I can apply to my current lender to get similar deal, the current base rate would cripple us! (this is why my credit rating bothers me - I dont want anymore credit other than a mortgage) We are in the process of working out a budget and seeing if we can convince work to fund some of the rent etc while we are there. That would be a great help. As for being jealous...... I'm really hoping this all works out and we can do something to look back on in our old age. The kids are just 4 and 1, so this would be a great chance for them too. My Dad's Japanese, so I have family ties out there too, and the Mrs and I are keen to keep them strong. So next time your in that part of the world let me know, we'll show you the sites lol!!!!
  3. Hi just thought i would run this by you, as you have all been so great in the past. I have the chance to work abroad, in Japan for a year or two. I would love to go, but there are a couple of things about my debt that worry me. Firstly I have a mortgage and a secured loan on the house, if I sell then I could probably clear both of these (just) So I wondering wether i should just rent it out while I'm away, (I can sell my car etc to make mortgage payments for a year, and rent will cover secured loan) or sell and try to buy again when I return. I have 2 kids and a wife so will need to have some sort of plan in place. My credit rating is lousy so does anyone have any idea how 'repaired' it would be 1 or 2 years down the line to allow me to get a decent mortgage? Plus if I CCA all of my creditors now, (after making reduced payments for 5 months) Should they not produce the proper info, how long do I have to wait before I can offer them full and final settlements? I guess what I'm hoping for is to return from Japan in a better postion financially than I am now. Any suggestions or views would be great. thanks
  4. anyone able to help? pleeeeeeeeeeeeeeaaaaaaaaaaasssssssssssssseeeeeeeeeeee
  5. hi bookworm et al, thanks for merging the threads.... this is what i have done so far, sent S.A.R then lLBA with schedule and then Mcol and used all templates from here, then had cpr part 18 from Cobbetts which i completed using templates from here. (letter plus schedule of charges) next step was AQ which i sent into the courts, and completed using the step by step instructions from here. So just sent in AQ, and schedule of charges. NO covering letter or statement, I am guessing this is where my mistake lies? I have 2 claims running simultaneously, one under 5k with interest and one that the interest takes me over the 5k mark. So with the one on the fast track i asked for it to be keep in small claims cos it was under 5k before interest. The claim that is under 5k is the one i have had the court order for. Any ideas on what i should do would be greatly appreciated. I have seen this letter on another thread, do you think this would suffice? (Thanks to Michael Brown for the letter ) X CLAIMANT - and - XXX Bank PLC DEFENDANT ________________________ Particulars of Claim ________________________ The Defendant is a well-known commercial bank with branches throughout the United Kingdom. The Defendant also has branches and places of business throughout the world. The Claimant has an account (hereinafter referred to as ‘the Account”) with the Defendant which was opened during or around XXXX. During the period between XX/XX/XX and XX/XX/XX, or thereabouts, the Defendant debited numerous charges to the Account, in respect of “unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. The Defendant has also charged interest upon these charges once applied. (amounts debited and mentioned in this paragraph are hereinafter collectively referred to as “the Charges” and all detailed within Schedule A attached hereto). The Claimant views the Charges as being unlawfully applied. The Claimant understands that the Defendant contends that the Charges were debited in accordance with the Terms & Conditions, which it appears to claim form part of an agreement between itself and the Claimant. The Claimant was only able to obtain complete details of the Charges by virtue of a Subject Access Request, served upon the Defendant, pursuant to s7 Data Protection let 1998. The cost for said request was £10.00 and the date whereof was xx/xx/xx On or about xx/xx/xx the Claimant sent a letter to the Defendant asking for a refund of inter alia the Charges. In said letter the Claimant made various assertions and arguments to substantiate her request, quoting relevant sources of law and evidence. Claimant concluded therein that the Charges were unlawfully levied to the Account by the Defendant. The Claimant subsequently received a letter from the Defendant, dated xx/xx/xx. Therein the Defendant, informed the Claimant that the Charges would not be refunded. Further, the Defendant averred that the Charges were “fair, reasonable and transparent” and were provided for by the Defendant’s “published tariff’ which, it claimed, complied “with all applicable laws and regulations”. Unfortunately, the Defendant, was unable to provide any legal and/or factual basis for its assertions. A letter before action was sent on xx/xx/xx or thereabouts on the Defendant. The Claimant received a letter from the Defendant, dated xx/xx/xx, giving its “final response” to the claim, denying a refund of inter alia the Charges, to the Claimant. Claimant notes that the Defendant, to date, has made no attempt whatsoever to present a competent defence to the Claimant’s claim. Brief Outline of Claim Claimant as part of her basis of claim, advances that: a. the Charges have been unlawfully applied to the Account; b. no contract ever existed between the parties hereto that purports to allow the Defendant to levy the Charges to the Account. c. should such a contract exist it could only exist in the form of the Terms & Conditions. d. only if this court, being of competent jurisdiction, should find that such a contract existed between the parties hereto then the Charges are penalties relating to a breach of contract and hence irrecoverable as set out hereinafter. e. only if this court, being of competent jurisdiction, finds that the Charges are remuneration to the Defendant for services provided then they are irrecoverable due to inter alia the fact that the terms, if any, which provide for the Charges are unfair and the Charges themselves are unreasonable. In support of part of her basis of claim the Claimant contends, and intends to prove that: a. the Charges are: i. punitive in nature; ii. unreasonable; iii. generally disproportionate; iv. excessive; v. unfair; vi. unlawful; vii. not a genuine pre-estimate of loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant; viii. exceed any alleged actual loss to the Defendant in respect of any alleged breaches of contract on the part of the Claimant; ix. not intended to represent or related to any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit; x. not intended to bear any relation to the Defendant’s actual losses which it can show it has incurred and would not have incurred but for any alleged breaches of contract on behalf of the Claimant; and xi. are held in in terrorem to discourage the Claimant from presenting items on the Account for payment where there are insufficient funds to cover such payment of said item. b. all contractual provision(s), if any, between the parties hereto, which purport to permit the Defendant to levy the Charges to the Account, are unenforceable by virtue of: i. the UTCCR; ii. the Unfair Contract Terms Act /977 (hereinafter referred to as the “UCTA’) iii. the Supply of Goods and Services Act 1982; and iv. the common law; and c. the processes involved in processing unarranged overdrafts, unpaid items, referrals, etc are entirely, or else almost entirely, automated. Unfair Terms in Consumer Contract Regulations (S 2083/1999) Any contract between the parties hereto falls within the ambit of Regulation 5 of the UTCCR as the Claimant could only be a consumer, within the meaning of the UTCCR, in relation to any contract between the parties hereto. Regulation 5(l) of the UTCCR provides as follows: ‘A contractual term which has not been individually negotiated shall he regarded as unfair if contrary to the requirement of good faith, it causes a sign unbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” Paragraph 1 to Schedule 2 of the UTCCR includes all “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” as being part of a indicative and non-exhaustive list of terms which maybe regarded as unfair” (Regulation 5(5) UTCCR). Paragraph 1(k) to Schedule 2 of the UTCCR includes all “terms which have the object or effect of enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided” as being part of the “indicative and non-exhaustive list of terms which may he regarded as unfair”. The Terms & Conditions allow the Defendant to unilaterally alter the charges applied for “Unarranged Overdrafts”, “Unpaid Item(s)” and “Referral Charges”. Regulation 8(l) of the UTCCR provides that: “. 1n unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.” Accordingly, the Charges being disproportionate and punitive, any term of contract purporting to allow the Defendant to levy the Charges is deemed to be unfair and unenforceable by virtue of Regulations 5(l), 5(5) and 8(I), and paragraphs 1(e) and 1(k) of Schedule 2, all of the UTCCR. Unfair Contract Terms Act 1977 Any term of contract between the parties hereto purporting to entitle Defendant to levy the Charges to the Account is unenforceable by virtue of s4 UCTA. In this eventuality the Claimant is entitled to judgement as sought in paragraph 64 of these particulars. Specifically, any such term would represent an indemnity clause in a contract where one of the parties deals as a consumer. Consequently such a term would be unenforceable as it would be unreasonable. Under s 1 of the UCTA the requirement of reasonableness is that “the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.” Common law The authorities mentioned in paragraph 18 and the facts mentioned hereinbefore make it abundantly clear that, any term of contract purporting to allow the Defendant to levy the Charges against the Account, is a penalty clause and hence unenforceable at common law. In particular, the case of Dunlop Pneumatic Tvre Co. v. New Garages and Motor Co are powerful authorities in favour of the Claimant. Accordingly, the Claimant is entitled to judgement as sought in these particulars. It was noted in Dunlop that “There is a presumption (but no more) that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”. Lord Dunedin, went further in Dunlop and, laid down three rules concerning penalty clauses: a. The use of the words ‘penalty’ or ‘liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive. b. The essence of a penalty is a payment of money as “in terrorem” of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage. c. Whether a sum stipulated is penalty or liquidated damages is a questions of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as of the time of making the contract, not as at the time of breach. There are a number of tests, which would prove, helpful, or even conclusive: i. it will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach; ii. it will be held to be a penalty if the breach consists only in not paying a sum of paying, and the sum stipulated is a sum greater than the sum which ought to have been paid. Details of Judgement Sought by Claimant Accordingly the Claimant seeks: a. the return of the amounts debited in respect of the Charges, as detailed in Schedule. The total sum whereof being £XXXX b. the return of the Subject Access Request Fee, in the amount off £10.00, that the Claimant was required to pay in the perusal of this case c. court costs; and d. interest pursuant to s69 County Courts Act. Interest, in that case, up until xx/xx/xx amounts to £XXXX, as detailed in Schedule, attached hereto. Interest per day thereafter, or part thereof, is £00.xxp Statement of Truth The Claimant believes that the contents of these particulars of claim are true SIGNED
  6. hi all just recieved this letter in the post this morning can anyone tell me what i should be doing? district judge glentworth sitting at crown house (etc) has considered the papers in the case and ordered that the claimant shall by 4pm on the 15th feb file at court and serve on the defendant a statement clarifying her partic of claim which must contain: a) a concise statement of the facts she relies on in support of her claim ans in particular shall 1) specify the nature of the charges which she says charges have wrongly been levied and 2) set out in schedule form the charges in respect of which the claim is made showing each charge for each date, the amount and description of the charge. number 2, i guess this is the shcedule of charges spreadsheet - easy, although cobbetts already have this..... but what about the first bit A, 1 ? any ideas?? thanks in advance
  7. hi there, i initially, when first writing to the bank asked just for the charges back, ie no interest at all. When they refused and i filed on MCOL i asked for the 8% interest. Since then i have included the interest in my claim since it has been filed at court, so charges eg. 3k plus 8% interest on that. got a letter from the court today asking for more information, so at least things are moving, also recieved a call from cobbetts saying again they have not had my cpr part 18 and schedule of charges. so i have e mailed them. mmmmmm anyways best of luck
  8. hi there, i have e mailed cobbetts several times, and you get a quicker response than the post. the 2 claims i have running are almost at 10k so its worth waiting for i think ! i too started my claim back in october so we are more or less at the same stage. i spoke to the courts yesterday and they reckon it will be march/april by the time the case gets to court. but hey i got time!! keep smiling
  9. hi, its cobbetts llp ship canal house king street manchester m2 4wb 0845 4042404 good luck !
  10. hi Blue snail, thanks for your reply, i havent had an offer from cobbetts as yet, but way back when i sent in the LBA Mr Higley offered a measly amount to which we said thanks, but no thanks. Before i sent in my AQ i rang cobbetts and offerred so settle for the full amount plus fees before i sent it in. The lady i spoke to asked my to Email my offer which I did. She emailed me back saying i will advise my client and get back to you. Nothing as of yet, and that was about a week ago. My AQ went in on the 16th Jan. So just waiting now i guess. How are you getting on with the waiting game? I'm not unnerved, just impaitient to get it all over with!! keep smiling
  11. hi all, we have sent in our AQ's and so have natwest so now just waiting for the court date .... and then natwests offer....... he he he my question is does anyone have any idea how long its taking in my area to get a court date? I have 2 claims going one for nearly 4k and the other for just over 5k with interest. just on the final wait now..... my other question is, we dont have a credit card now to pay for MCOL so how do we go about starting another claim without going through MCOL? Thanks in advance
  12. thanks robberbank, i think its all just a battles of nerves really. i have nothing to lose and natwest do, so i know i have the upper hand.....
  13. hi all thanks for everyones help on here so far, i wouldnt have known what to do without your invaluable advice. we are up to the AQ stage infact i am taking that down to the court tommorrow (this is the last day it can be filed) having responded to Cobbets standard cpr 18 letter. my question is, Has anyone spoken directly to cobbetts at this stage and asked them again to settle before the court date is issued? I would also be interested to hear any views on the possible downside to this approach. My other question is, once the AQ is in how long does it normally take for the court to issue a date? thanks in advance !!!!
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