Well I didn't get any joy from the LBA except another 'get lost' letter.
So Today, I took my paperwork to my local county court.
Firstly, they don't take credit cards so I had to go to an ATM to get £120 out.
Then, the lady behind the desk says, "You can't claim 17% interest. You can only claim S69.
She really didn't want to issue it until I pointed out that it was for the court to decide. She finally took it, (I don't think she had seen one with Compound, but she said she would have to pass it by the judge tomorrow to see whether he would 'allow' it to be issued !!!!!
Here's my POC
Particulars of Claim
1. The Claimant opened an Girobank current Bank Account No. XX XXX XXXX on xx march 1995 (Girobank now wholly owned by Alliance and Leicester plc)
2. During the period in which the account had been operating the Defendant debited numerous charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.
3. A list of the charges applied is attached to these Particulars of Claim as Appendix 1
4. The Claimant contends that:
a) The charges debited to the account, as outlined in the attached schedule (Appendix 1) are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged loss to the Defendant in respect of any breaches of contract on the part of the Claimant and are not intended to represent or relate to any alleged actual loss but, instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. In the event that the charges are not a penalty, they are unreasonable under the Supply of Goods and Services Act 1982 section 15. The Defendant has declined to justify the charges.
b) The contractual provision which permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), The Unfair Contracts Terms Act 1977 section 4 and the common law.
5. Accordingly, the Claimant claims:
5.1 ) The return of the amounts debited in the respect of charges in the sum of £632.50
5.2 ) Court Costs
5.3 ) Interest
5.3.1) The claimant claims compound interest on the charges applied thereon to the claimant’s account (“the principal claim”), at the annual rate of 17.08 %. This is the rate currently applied by the defendant to customer’s unauthorised use or borrowing of the defendant’s monies, as provided for in contract.
The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.
The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply unlawful penalty charges and interest thereon to the claimant’s account, or to profit in an unlawful manner from the claimant’s account breaches.
For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).
Regulation 5 (1) of the UTCCR states as follows:
5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”
Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.
5.3.2 ) In the alternative to 5.3.1 should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of 15% per annum, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised.
5.3.3 ) In the alternative to 5.3.1 and 5.3.2 above, if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers that the defendant would be unjustly enriched if the claimant’s entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of 15 % per annum.
5.3.4 ) In the alternative 5.3.1, 5.3.2 and 5.3.3 above, if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984.
5.3.5) Schedules showing interest calculated at the rates quoted 5.3.1, 5.3.2&5.3.3 together, and 5.3.4 are attached to these particulars of claim, as Appendices 1, 2 and 3 respectively.
6 ) Further contractual interest at 17.08 % compounded daily from 21st February 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently £0.92 per day, however as noted herein, this figure is liable to increase over time.
End of Particulars of Claim
Can they do this? Can they refuse to accept a claim?
Oh well - we wait now
I'll keep you posetd