me v helifax*won*

[c_allen]

OK this is what i'm thinking of sending, bearing in mind that the offer DOES NOT say anything about full and final settlement, only that- 'you are willing to settle your claim upon these terms.'

 

Dear sir.

 

I have received your letter dated 22/11/2006 offering me £4624.00 which I am willing to accept based upon the terms outlined by yourself, including the terms outlined in paragraph 5.

paragraph 5.

The Halifax does not consider that you are entitled to the further £1931.18 that you are claiming. Unless you can provide evidence of this further loss the halifax will file a defence in respect of this part of your claim please confirm within 7 days.

 

 

does this sound OK ? i'm not accepting as f/f , but would a judge see it this way???????????????

I really NEED some cash fast but don't want to accept less than i'm claiming and i hope this is a possible way around it, any comments/opinions more than welcome:rolleyes: please:!:

[jonni2bad]

Hi j2b hope you don't mind me PMing you, but could you pease could take a quick look at my thread me v helifax[ page 3]. don't know what to do and have been asking since sat, the wording of the letter is confusing me:sad:

 

cheers x

 

Well there's very little that I could ad to GaryH's posts - you really need to decide if you want to claim contractual interest or not... if you do, then you have to fight them for it - they're not going to roll over at the first attempt (as per Gary's thread).

 

If you write back and tell them that you'll accept the offer as partial settlement they might choose to withdraw the offer, but this would see them facing appearing in court to discuss the charges, which they simply don't want to do...

 

If the case did reach court and you had refused their settlement, then you would not be placing the whole claim in jeopardy and once you had convinced a Judge that the charges were unlawful then you'd simply argue the case for contractual interest. This could be decided against you leaving you with what they have offered now (i.e. you would lose the whole case simply because you lost that one argument).

 

However, only you as the claimant can decide what is best for your needs and this is what you really have to resolve first.

[c_allen]

thanx j2b thats what my B/Fs been telling me too, i want to, but need the cash before xmas, for bills not prezzies worst luck. i was just hoping that the very short letter was not signing away my rights while being vauge [is that spelt right?] enough to get them to pay the money thinking that i'd given in, when i've left an option [which i'd use] to carry on for the C/I

[mcuth]

I have received your letter dated 22/11/2006 offering me £4624.00 which I am willing to accept based upon the terms outlined by yourself, including the terms outlined in paragraph 5.

 

Ummm, if you're only accepting this as a partial settlement and therefore not wanting para 5 to apply, I would rephrase this - otherwise it's currently accepting that you're not entitled to anything else. So, you'd need something like:

 

"Thank you for your letter of 22nd November 2006, I would be pleased to accept your offer of £4624.00 in partial settlement of this action.

 

With regards to the £1931.18 claimed in interest on the basis of mutuality & reciprocity in our contract, I intend to continue my claim for this sum and will [produce supporting evidence within 7 days of this letter] {or} [respond to your defence appropriately]"

 

Aside from that, there's nothing to add to what Gary & Jonni have already said - it's decision time as to whether you want to battle on for the full lot & risk them withdrawing the current offer, or accept what they're offering in f&f settlement.

 

Cheers

 

Michael

[c_allen]

thanx for that i'll sort it tomorrow. time for bed

[tumble]

I reading your posts with interest particulary with regard to your business. This is something that has been bugging me when considering the number of small business that have suffered or gone under as a result of these charges. Surley there are grounds for consequential loss. any comments from a mod ?

[Mindzai]

There are gounds for consequential loss but you have to be able to prove with absolute certainty each and every loss that you suffered that was a direct consequence of your charges. It's a different ball game from claiming back charges.

[c_allen]

i hope you all had a nice xmas.

 

i thought i better up-date my thread as alot has happened. i did send a letter accepting only as partial payment and lo and behold the amount was paid into my account. i took this as a response to my letter and paid all my debts off straight away, i cannot begin to explain how much better that made me feel. and then a few days later i received a letter saying ' as you have not responded to our offer within the 7 day period, we have paid the amount stated in our offer into your account. this has really messed my head up, surely they cannot force you to accept a lower offer can they?. i did not receive a reponse to my letter and nowhere have i accepted settlement of the claim.

 

since then i have received a defence and allocation questionaire from halifax and the courts. the defence is worrying me as i'm concerned they will definately go to court and defend as they are confident we are not entitled to the contractual rate of interest. they did however miss a charge of £30 and £5 sar fee. there was on their offer letter an amount they offered us as 'interest charged on the account as a result of the charges' we don't know what this means as we didn't bother claiming the overdraft interest.

 

Now that we've got their defence we know that they're saying that this interest is the 8% s69 but that is not what their offer stated as my partner reads it as interest to the account as a result of penalties so i think that is what we'll argue in court [i'll post the exact wording when i've more time] .

so basically what we're claiming for now is 1x £30 penalty, £5 sar fee and £2000 ish contracual interest at 29.8%, and we will be informing the court what they've done so any thoughts would be gratefully received:)

[jonni2bad]

You have to remember that not very long ago they were "confident of winning ANY court action" so please take their statements with a pinch of salt.

 

The fact that you responded by letter stating the grounds upon which you would accept payment is sufficient to put that issue to bed. Do not worry about that any further. More likely is that different departments within the bank have been handling your claim and the left and right hands are not communicating very well again.

 

Stick it out and see what the Judge says! you've really got nothing to be concerned about. Any potential hearing will be informal, just you, the bank and the Judge sat around a table. If the Judge is at least half decent then he/she will simply want to hear both sides case, so just be sure of the things you would like to say and what you believe may back you up in law.

[c_allen]

thanx j2b just what my B/F said. And happy new year

[c_allen]

OK a quick update, allocation questionaire filled and filed so i'll have to wait and see what happens next but i hope it doesn't take to long.

not really bothered if i win this part or not as i will only lose £100 and it came out of the payment i received from them anyway [ ok i still want to win LoL]. does anyone have any idea what i can expect next? as i like to be fore-warned if possible?

 

oh yeah HAPPY NEW YEAR TO ALL HERE ON THIS WONDERFUL SITE

[GaryH]

And a happy new year to you too!

 

What will happen next? They will defend. See my thread which I already linked for you in post #45. I'd be very surprised if you did'nt receive the same defence word for word.

 

EDIT: oops, sorry - seems they already have. Misread your post. Was it the same defence as mine?

[c_allen]

yep almost word for word, i didn't reply just filled in the AQ and now just wait and see what happens, i know i should have put a bit more info with AQ but didn't have time to prep with it being this time of year, never mind i'll be ready IF it comes to court. i did ask for standard disclosure on the grounds that they paid charges into my account without me accepting their offer and that in my opinion it was to avoid standard disclosure so i respectfully requested it.

[c_allen]

HI AGIAN

i'm just preparing my court bundle and want to know if i have to include all the utccr 1999 stuff as it's now only about contractual interest ?

[purplerain]

Hi c allen, i'm at the same stage as you. When is your court date? Mine is 6/5/07.

 

Purple X

[c_allen]

2/5/07

[c_allen]

OK I'm going to send these of to the court and a copy of the application for the defence to be struck out to halifax's legal team, any thoughts??????

REPLY TO DEFENCE

Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date

Dear Sir/Madam

Having re-read the Defence in this case I fail to see exactly what the defence is, as they've made no attempt to say on what grounds they will be defending this case.

Paragraphs 1,2,4, of the Defence are admitted.

Paragraph 3. The Claimant admits that she did sign a contract in which the account conditions may have stated that the Defendant could debit these charges, but as I stated in my P,O,C, paragraphs 4,part A, '' The charges debited to the account are punitive in nature; are not a geuine pre-estimate of cost icurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related 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.''

part B'' The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations [1999], the Unfair Contract Terms Act 1977 and the Common Law.

This part of the defence answers nothing in relation to my P,O,C, as to why they believe these regulations and laws do not apply to the charges and so is no defence at all

Paragraph 5 states'' The remainder of the claim appears to also to relate to bank charges incurred and interest at 28.8% being the alleged contracual rate''.

In answer to this; firstly the rate I am claiming is not 28.8% but 29.8%, their own published unauthorised borrowing rate. I would like to be able to say which bank charges the £31 they decided not to refund relate to but the defendant has not informed me which they have refunded, I have at all stages provided the Defendant with a printout of all the charges I have claimed, so I would expect the Defendant to state which charges, if any, the Defendant feels i'm not entitled to and why. On my N1 form i asked for £3693.00 to be refunded in charges but the Defendant only refunded £3662.00.

Paragraph 6 states'' it is denied that the Claimant is entitled to the sum as the claimant has failed to provide particulars of how this figure has been arrived at, and the figure is not supported by the Claimants account details''.

In answer to this; I have explained how I arrived at this figure in my preliminary approach for payment letter, in my letter before action, and also in a letter dated 28 nov 2006, [ I fail to see how they can make this statement or how this defence could have any chance of succeeding], the figure is supported not by my account details but by their own published unauthorised borrowing rate of 29.8%. I have also stated that the reason i believe I am entitled to this rate is based on the implied and/or imposed contractual term of mutuality and reciprocity, though I will explain my reasoning further;

Interest can be claimed on all monies owed when a county court claim is filed to recover it. The county courts act 1984 allows the ''Claimant to claim the s69 judgement rate, currently 8%, if no other interest can be claimed. However in a contract dispute, it is entirely right and proper for the Claimant to base her interest claim around the rate stipulated in the terms of that contract, should such a contract exist''.

Defendant charges interest to the Claimant, via the Account, at its published "unauthorised borrowing rate" of 29.8%. The Defendant claims that it is entitled to charge this rate, by virtue of the Terms & Conditions.

The unauthorised borrowing rate is charged to the Claimant, via the Account, when the Claimant draws money from the Account whilst she hasn't obtained permission from the Defendant for exceeding any overdraft limit that she has. It is in effect, a rate that the Defendant charges the Claimant when she draws funds from the Defendant when she has no right for doing so.

Using, that reasoning and maintaining the principal of equity, mutuality and reciprocity between the parties, the Claimant contends that she is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law. had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself, in similar circumstances. If no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

Paragraph 7 states'' The Claimant has been reimbursed with interest as detailed at paragraph 4 above, and on the basis of matters pleaded above, the Defendant denies that it is liable to the Claimant for the sum of £1931.18 in respect of the balance of her claim or for any other sum.''.

In answer to this; I can only assume that they are stating that they have paid me the s69 interest in the settlement of 22 nov 2006, in this letter they stated '' However, on a purely commercial basis, it will cost Halifax money to defend your claim in terms of legal cost that will be incurred. For this reason, but without admission of liability, Halifax is willing to reimburse £3662.00 in respect of bank charges incurred, together with £712.48 in respect of approxmate interest that the Halifax has calculated was charged on your account as a result of charges. Halifax will also reinburse £250.00 in respect of the court fee. This amounts to £4624.48''.

At no point in this letter is there any mention of any s69 interest, nor is the £10 DSAR fee included, nor is the daily interest at the rate of £5.14 from 6 nov 2006 until 30 nov 2006 total £123.36

Value of claim upto 16 apr 2007=

£2602.66 contractual interest 29.8%

£123.36 daily interest £5.14 per day

£100 allocation fee

£31.00 charges

£10 DSAR fee

total £2867.02

Should this court not find that aforesaid implied and or imposed contractual term does exist, Claimant claims interest pursuant to s69 County Courts Act. Interest, in that case, up until 30 nov 2006.

I also feel that the Defendant may have repaid the charges part of this claim, in order to avoid the issue of the legalities of weather or not their charges are lawful, this appears to be a tactic that most banks and credit card companies are employing when Claimants are claiming contractual interest. I feel that a simple test of their confidence about the legalities would be to order the Defendant to provide the Court with a list of the precise number of cases where the Defendant has entered a defence, [re charges ], and precisely how many the Defendant has then gone on to defend in court, how many the Defendant has settled before court, I feel that if such was requested by the Judge this claim would be settled without the need to take up further court time.

I also feel that the Defendant has at no point entered into any meaningful attempts to resolve this issue, even though I have written to them twice to attempt to come to a compromise solution, once in a letter dated 28 nov 2006 where I offered to reduce the interest rate I am claiming to18.9%, to which i received no reply, and has been withdrawn, then a further offer was made by me in a letter dated 22 feb 2007, again with a further reduction in interest to 8% s69 but they decided to ignore the 28 day deadline of this offer and went on to try to impose their own deadline, 30 apr 2007, this offer is also withdrawn, as this would not leave enough time for me to either accept or reject their offer before the date we're due in court. I find the Defendants actions or lack of actions have hindered my attempts to end this dispute with out the need for this litigation. This dispute has been ongoing since july 2006 and the Defendant hah made no serious attempt settle until I had already started this litigation.

 

I believe the facts contained in this reply to be true.

 

 

AND

 

Application Notice

Order sought

(1) The Defendants Defence be Struck Out

(2) Summary Judgement be granted in favour of the Claimant, as sought in the Particulars of Claim.

Because

(1) The Defendants Defence discloses no reasonable grounds for defending the claim.

(2) The Defendants Defence does not adequately deal with most of the pertinent grounds contained within the Particulars of Claim.

(3) The Defendants Defence has no reasonable prospect of success.

(4) Allowing the Defendant to proceed with its frivolous and vexatious Defence

Part C

I wish to rely on the following evidence in support ofthis application:

(1) All abbreviations/references remain as defined in the Particulars of Claim and the Reply to Defence unless it is stated otherwise below.

(2) The Defence discloses no reasonable grounds for defending this claim.

(3) The Defence does not comply with CPR 16.5(2), in that when denying an allegation it doesn’t provide the Defendant’s reasons for doing so and doesn’t provide an alternative version of events. Furthermore, it is the case of the Claimant that the Defendant cannot deny an allegation without providing an alternative explanation/view on the matter in question.

(4) The Defence does not deny that any term of contract between the parties hereto purporting to allow the Defendant to levy the charges to the account is unenforceable by virtue of paragraph 1(k) to Schedule 2 of the UTCCR and also Regulation 5 of the UTCCR. As well as not having denied this allegation, the Defendant hasn’t dealt with this allegation or met the criteria of CPR 1 6.5(3)(b) in the Defence with relation to this allegation. Accordingly, the Defendant is taken to admit this allegation. As the Defendant admits this allegation there is no prospect of its Defence succeeding and no reasonable grounds for defending this claim are disclosed in the Defence or at all.

(5) The Defence doesn’t provide one valid substantive defence. The Defence seems to blindly deny allegations contained within the PoC, but doesn’t comply with CPR 16.5(2) so these denials are irrelevant (see paragraph (4)).

(6) The Defence is both frivolous and vexatious. The Defendant has had many cases concerning its default charges raised against it by consumers. These cases are usually settled for the full amount just before the court trial date. This ensures that the Defendant isn’t required to justify its charging regime, and in this case then goes on to defend a much smaller amount after already stating that it is not cost affective to defend the much larger sum originally claimed, resulting in a lot of wasted court time.

(7) Accordingly, this court should seek to give effect to its overriding objective, and strike out the Defence at this early stage, so that no more valuable court resources are wasted in dealing with a claim, where the defence which has absolutely no prospect of success.

(9) In view of the above averments and the Statement of Claim the Defence should be struck out and summary judgement granted in favour of the Claimant, as sought.

I believe the facts contained in this reply to be true.

 

I DID GET MOST OF THIS FROM http://www.consumeractiongroup.co.uk/forum/rbs-bos-successes/49470-contractual-interest-details-case.html

I DO HOPE HE DOESN'T MIND

any thoughts or criticisms welcome:|

[emmaf01]

I've just filed my AQ against the Halifax this week, so it is good to find someone else at this point- and I'm only claiming statutory interest.

 

I'll be watching closely;).

[GaryH]

For a start you need to present it in numbered paragraphs - its unreadable as it is now.

[c_allen]

Cheers Will Do is there any other probs with me doing this??????????????

[c_allen]

Gary, do you think this could do my case any harm if I try this?

[GaryH]

Sorry, try what?

[c_allen]

try to have their defence thron out, and is there much chance of it working, may be stupid questions but i'm not that confident of winning as it's basiclly only about C/I

[GaryH]

So are you planning on making a formal application then?

 

Your on very dodgy ground here, on both counts. Your biggest problem is that you've let them off the hook - you've accepted the refund of charges so the only thing at issue is the CI. Make no mistake, Halifax will defend this.

 

I'm not sure what to suggest for the best to be honest. If you are going to pursue this you need to build a strong a case as is possible for contractual interest - and with greatest respect, its going to take a lot more than what you've got at present.

 

I strongly suggest you seek advice from someone like Bong, GlennUK or Bill-k.

[c_allen]

cheers will do