posted the rejection letter this morning, stating my notions on the issue of costs. Im sure some people will question whether we can charge "costs", well i have a pretty good idea of the law and realise that pursuant to the small claims track (unless the other side has acted unreasonably) then the no costs rule applies. This is really a test to see just how desperate these people are to stay out of court, (im guessing they will do this at all costs), so i will keep you posted with my little experiment

Response to settlement offer. 28.3.2007

Dear Lee Feltham

Thank you for your letter dated 26.3.07

I respectfully decline your offer of settlement and request, once again, that you return to me the amount as laid out in attached appendix A. I do not accept your non acceptance of the full amount, inter alia referring to my actual costs incurred while researching, printing, copying, letter writing, posting and studying the issues involved in unlawful penalty charges. I aver that had it not been for Online Finances unlawfulness in the first place, I would not be in this position now and therefore would not have incurred the costs I have done.

Further to that I have made it abundantly clear that any penalty due to breach of contract is indeed unlawful under Common law. Therefore I aver that online finance then borrowed money from myself (in effect) and under the principles of mutuality, equity and reciprocity of contract I am entitled to interest at the same rate as laid out in the credit agreement.

After the recent findings of the BBC television programme “whistleblower” it is now even more certain that, the vast majority of financial institutions are partaking in a concealment of the true facts. To date not one single bank, credit card company or finance company have actually stood up in court and disclosed the true costs of these “penalty charges”. To date every single financial institution has averred that their fees are lawful and transparent, just because they have written them in their terms and conditions, however not one of them has showed this to be the case, even after thousands of requests to do so.

Indeed Online Finance seems to be in this bracket also, given the fact that I have made two requests that you advance me the true costs involved in these penalty fees. I feel that any reasonable request from a customer, asking a company to prove that they are acting lawfully, should me acknowledged and accepted immediately. If that company then went on to conceal their actions or activities, clearly this could only shed them in very poor light indeed. As has been proven in English law over the years, a concealment is little different to an admission of fact, as you must ask yourself, what kind of person hides something like this ?

I would suggest, as I have already done, you are also involved in a concealment of the facts, and your only defence is to show no defence. I must then continue with my claim, in the hope you will be forced to prove you costs in court to the judge, and the whole penalty fee issue (that’s storming the UK presently) can be resolved once and for all. Upon my claim reaching court I will of course be entitled to a further 8% interest, pursuant to section 69 of the county court act. So it seems that I have very little to lose, and much to gain from this action, not just for my own sake but the good of every consumer in the same position as me, as any judgement in court will then set the precedent for further actions.

Further, i am extremely keen to get judgement in light of the “whistleblower” programme on television, as i feel a test case is now well overdue. I am very confident of my own averments, and have every faith in the judge and the English civil judicial system. Financial institutions have taken advantage of consumers for too long, and in light of your/their unlawful acts it is now time to take you to task over this.

My letter before court action sent previously indicates that you have until 4.4.07 to respond before Court action commences. However given the fact you have responded, I will out of reasonableness extend this time until the end of next week, that is Friday the 6th April, 6.4.2007, otherwise if I do not receive a response by then I will be submitting an N1 county court claim form, in Worksop County Court without further notice.

For the avoidance of all doubt, your offer is wholly rejected.

The amount I request in unlawful penalty fees, interest and costs is as follows below:

£1041.89 accruing interest at £0.23p per day.

I will accept payment by cheque only made payable to Progenic7

I trust this fully clarifies my position on this matter.

Yours faithfully

Progenic7

Hi Muggins,

i have a couple of threasd worth looking at for advice n stuff, there is a large thread i think bankfodder started about CI, just search for CI on thread tools and you will get loads of threads come up.

Keep it up

http://www.consumeractiongroup.co.uk/forum/general/60534-beyond-6-years.html

http://www.consumeractiongroup.co.uk/forum/general/3598-do-you-have-charges.html

http://www.consumeractiongroup.co.uk/forum/general/51736-excel-contractual-interest-spreadsheet.html

http://www.consumeractiongroup.co.uk/forum/natwest-bank/56352-josa-natwest-6-years.html

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/33005-bong-hsbc-contractual-interest.html

ron,

ok i understand, well its entirely up to you really if i was you i think i would be trickling snippets to them just to see if they bit or not, i really cant see them wanting to go to court even over a time barred issue.

Me myself would howevr hold onto a certain amount of info for the day though, and maybe as we have said before be ready to counter with a little trap of your own.

get your arguments straight though just incase they do decide to go along on the day, if you argue the case well enough the limitation act will pose no real problems i dont think.

Johnny

received a templated letter from them today, just letting me know (well not really letting me know much at all) that my account may be closed as i requested in my last letter.

they say it MAY be closed not that it actually is, of course that depends if they can decide if there is any interest that i still owe, but they suggest if my account is at zero then it should be closed, well my account is at zero so im taking it as fact.

Though a phone call tomorrow will confirm one way or the other. its part of my game plan that i always close the account before i start court proceedings (as i have found generally they try and sneakily pay money into the account a few days before court... naughty naughty)

johnny

received mail today in the form of a reply from Lee Feltham (supervisor) even though i sent the letter to the head of the legal dept. i think i will be declining this very generous offer from them, and lets see if we can do battle in court, as thats where they will be going (to prove their costs) if they dont pay the full sum (including my own personal costs) as you will notice i now have two letters signed by online finance telling me they openly make mistakes on peoples accounts (remember this as is will be used in court 8) ) muhaha

26t March 2007

Agreement number xxxxxxxxxxxxx

Dear progenic

We acknowledge receipt of your recent letters and write to advise of our findings now that this has been investigated.

Please note we do not accept your claim for costs incurred for time taken to prepare and research this matter. However, after giving this matter fair and due consideration, we are prepared to repay the administration fees of £385.00 which accrued on your account due to its history of arrears.

Upon receipt of your confirmation, a cheque for £385.00 will be raised in your name and issued to the above address. This cheque would be a refund of the following monies paid:

14th January 2005 - £75.00

3rd May 2005 - £47.00

6th September 2005 - £50.00

1st August 2006 - £213.00

The rebate you refer to for £657.18 is not refundable to you. This was a reversal of an incorrect entry done same day, the rebate you were entitled to stands at £614.80 and this was deducted from your settlement figure before payment was received.

We await your confirmation in the hope we can draw this matter to an amicable conclusion.

Yours sincerely

Mr Lee Feltham

Supervisor

Online finance

oh no look out everyone......

think i had better go back into the britney room and hide for a while before i get tempted by corns charms

ron,

sorry im not sure how far you are with your claim, but whether your at prelim or LBA or indeed N1 stage, i would be slightly reserved in what you send and dont give away too much too early on.

If they want to play hard ball then let them, if they prefer things a little tamer then also let them, as long as one basic rule is followed through out.

That is rule is ofcourse, you get 100% of what your asking for and you are 100% happy with it. However remember that when you get to court proceedings stage, that iif they offer you 100% of what your asking then you have to accept otherwise you will have your claim struck out.

Best of luck mate

where the hell is mindzai is what im wondering

ladybird,

so what are the criteria to be allowed to apply ?

johnny

Hi muggins

i know how you feel as mbna did the same to me only in a really snotty, cocky, snearing way to wind me up even more

but after my last letter to them, making it abundently clear that i wasnt messing, and that i thought they all were totally incompetent (i had already complained to the ombudsman) and threatened to file an N1 for non complience.

and at the last minute (though weeks late) they finally complied...ha the pussies i thought to myself, as i was looking forward to a good old fashoined fight with them.

Dont give up muggins, use that nager to write a very strong letter, laying out YOUR terms clearly and bluntly, i suggest that may just give them a kick in the ass, they clearly need.

Johnny

HI do have a copy of the NI form, which I assume is the Notice of Issue, also when I filed the particulars of claim, I copied it from the template supplied here and just put in the bits relevant to me. so I am assuming it is ok., the only thing I think I didn't do was calculate the daily interest rate. Is that going to matter, also at that stage I do not think I submitted the spreadsheet showing the charges with the MCOL claim.

 

So am I right in now thinking I just respond to Cobbetts with the standard CPR 18 reply and copy a letter to the court?

dolly hi again,

you certainly want to supply the defence with a copy of your spreadsheet, checking the charges are correct and up to date. Double check your N1 to see if it seems somewhat ambiguous ie can the defence actually work out what your saying and why in a legal sense ?

Double check everything again and get all your papers in order, and if your happy that the N1 you filed makes a good legally recognisable claim, then just tell them that you dont need to further plead any more at this stage.

but you must atleast submit anything you wish to rely on..ie a spreadsheet of charges is a big one

Johnny

dolly,

do you have a copy of your N1 form you filed at court (or mcol), and what are the solicitors dealing (ie cobbetts) ?

this is fairly standard fodder in relation to the Cag PoC (which personally speaking i do not think brings enough detail to the fore in it, but thats just me)

i shouldnt worry about it too much, as like i said its a standard request from the defence, for them to have a better idea of what your claim is about in legal terms.

So they are simply asking you to better particularise the details in the claim, in a legally recognisable way.

post your claim form if you can, and we'll see what we can do ok

and dont worry this is no biggy

Johnny

Zoot,

so what are your thoughts on the fact that the lost cases were lost based on the fact that a breach didnt occur ?

do you consider these to be classic penalty clauses..for instance like in the case of Dunlop ?

so even if these are considered penalty charges, how would you go about proving their penalties if there is no breach ?

i was reading some similar case law the other day where the judge just simply thought that the costs were reasonable.

johnny

Zoot,

wow thanks for posting

zoot i realise under CPR it clearly says the PoC should be concise, but i would of thought thats relative to the facts is it not.

The poc itself is based on the one written by a barrister in the case of "justwon" another CAG member.

All i have done is ammended it to suit my own needs, now i also realise the defence did attempt (this was cobetts sols) to say it was against CPR and was too lengthy, however the judge clearly didnt think so, and in actual fact the judge struck out the defences, defence for not answering every point on the PoC

so i know what your saying and i know there is risk attached to it being so lengthy, but im going to go with it, simply becasue i have put a fair amount of work into it, and based on what happened to the same defence last time, im not too worried.

Johnny

Corn,

for you i can tear myself away from anything

well no actually its my main claim with MBNA (the N1 anyway), its split into two parts really but in one claim, the PPI and the penalty fees.

its taken ages to ammend and add to it over the last few weeks, but i reckon i have just about cracked it, i have info from the FSA the FOS the OFT the BBI the IBA, you name it and its in my POC

cant wait to file it now coz its gonna hurt

Hi Cap,

i am in the same position as you i was self employed at the time of opening MBNA account, now the thingis they sent me the agreement because i did my own my explicit SAR in no uncertain terms what i wanted from them.

I know for a fact i did not tick the box, but on my copy agreement the box is ticked, they sold me the PPI over the phone about a week after opening account.

They new i was self employed and new the PPI wouldnt cover me, it clearly says that in their very own terms and conditions (only if you go into receivership..ie disolve the compnay) if you injurred your back like i did for a few months then they wont pay, because technically your company is still live.

What im saying to cut a long story short is that, Yes you do have a very good claim on your hands and you are fully entitled to all your PPI premiums back + interest @ 29% to boot.

another poster said they paid out on a self employed claim, all i can say to that is either they made a mistake or the claim was slightly altered on the claim form if you get my meaning. Because as i say again on their own terms and conditions it makes it abundently clear they wont pay on a self employed case.

Go get em mate

Hi all,

i have read this thread with great interest and although it does not directly apply to me, i am concerned for my fellow CAG members.

I feel that what Zoot said is very pertinent and everyone should take heed asap.

clearly there is a very big difference between a bank penalty charge and an early redemption charge.

The banks have not got a leg to stand on with the penalty fees on current account as clearly their liquidated losses are hardly anything (if anything at all) and they know in court a judge would see them as being penal, and therefore a classic penalty clause issue.

an early redemption charge however is a totally different kettle of fish, as the mortgage companies can and easily will if needed, prove their losses sustained by the simple fact a person has backed out early.

A judge is quite likely to see these losses sustained as reasonable, especially as they can be justified by them as a financial body and credit giver, after all thats their business and how they make money.

Im not in any way supporting them, im saying be careful be i wouldnt want to see anybody in deep water, and i mean in deep deep water

I would also recommend anybody in the position to be able, they close the claim and retreat gracefully back.

If you cant do this then i strongly suggest you try and come to an agreement out of court asap.

best of luck everyone

Johnny

The deed is done, its taken me nearly five weeks to add/chop/change and ammend my PoC for court, but it is now finished, all 17 pages of it.

i have loosely based the body of text around justwon's PoC, which was clearly written by a barrister who new his stuff, but its taken alot to put it right and add my own personal touches

not many days now till i get to file my N1

muhahahaha

i have just re read my last letter to MBNA i think i was a little bit mad that day.

well over the last few days i have been working on my N1 form (PoC) for the court, its taken a lot of doing i must admit, the PoC itself is loosely based around the one a barrister compiled in the "justwon" case, its taken alot to ammend and add stuff to it though.

But i can officially now say...its complete, the deed is done, mbna watch out because this is the mother of all PoC's.

Not many days to go before i get to file it at the court (9 to be exact)

muhahaha

Hi,

 

I'm giving it a go this week (wont say who for now, MIB) but as pointed out before, no precedent can be set in small claims, needs to go higher

 

TBH, I don't think it will get to court, if the CCP have got any sense they'll settle before that happens because the response to my S78 would look like a very bad joke (gone badly wrong, in a bad way) to the court

 

I'm taking an approach to the whole thing that I believe is very fair, should it work out I'll broadcast it

Are you sure about the small claims issue ? i thought that under the normal rules of citation in court, that if a point of law is about to be confirmed/denied or a point of law slightly altered/ammended or otherwise and that case is then recorded (as it must be under the rules) whether small,multi, fast track, mercantile or high court or other, that case is then citable as an authority in any other court in the land. However a judgement made but not recorded will still be citable although it wont carry quite the weight as another case which has been recorded.

Clearly if a ruling is made that is then subject to appeal, it will tavel onto the high court, where the case will still be recorded as an appeal.

But my point is that if a small claims judge does get to make a ruling in court then that case will then become an authority on that issue.

IMHO

johnny

Jos,

you are well within your rights to apply to strike at any time now, even though the judge may or may not go along with it, personally i would be doing it like tomorrow !

the courts are certainly holding these claims up as the entire british court system is entirely bogged down with these claims, much to the dismay of the judges. So they seem to be doing them in blocks of claims, which is not really fair for the first person in the queue.

I hope an order is made in parliment asap to do something about this, the banks are taking it too far, wasting everyones time and generally causing alot of trouble where trouble doesnt belong.

go get em Jos

Lol

its you, you encourage me.

anyways back to cold showers and percentages..ahhh hmmm

Goodnight corn baby ;-)

Park,

i would close the account asap, as long as it wont cause you any significant worries, then you are covered on that issue (making it very difficult for them to avoid the pre six year issue)

As far as ambushing goes personally i would prepare in two ways, firstly i would prepare my own ambush (by means of case law and any other authority you can get) so your ready with your own rebuttle straight away.

secondly i would try as far as possible to predict what ambush possibilities they have, and be ready for that, again with a rebuttle already prepared.

On the LA issues IMHO i dont think they are going to produce a case winning peice of case law as authority, because again IMHO i dont think there is that much of any real substance. (assuming you have some decent stuff of your own of course). However they may as they already have before try and argue that because the charges have not had a ruling on them as yet, by definition they cannot be called unlawful, therefore the s32 of the limitations act cannot be used. (we have all agreed this is a very perverse out come, but its there so be aware of it)

TBH i think the other side will assume they can win the argument over the LA and simply rely on experience to get the claim time barred, just be ready with your arguments, have your case law, take along audio transcripts of the "money programme" and "whistleblower", or even better ask to take along a CD player and play the relevant clips to the judge (as authority that the charges are unlawful)

I think its always handy to write out a full check list of questiones you have for the other side (bullet pointed to remind you)

Then have a full list of rebuttles to any given argument, with the case law to back it up.

Use the OFT rulings, the FSA's principles anything you can get to back up your argument.

At the end of the day you only have to sway the judge, as to what is more probable !

best of luck mate

at the same time ?