me v helifax*won*

[c_allen]

doea this look better?

 

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.

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

 

2. 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,

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.''

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.

c; 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.

 

 

3. 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;

 

a; firstly the rate I am claiming is not 28.8% but 29.8%, their own published unauthorised borrowing rate.

b; 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.

 

4. 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;

 

a; 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]

b; the figure is supported not by my account details but by their own published unauthorised borrowing rate of 29.8%.

c; 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;

d; 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''.

e; 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.

f; 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.

g; 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.

h; 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.

 

5. 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;

a; 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''.

b; 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.

 

6.

Value of claim upto 16 apr 2007=

a; £2602.66 contractual interest 29.8%

b; £123.36 daily interest £5.14 per day

c; £100 allocation fee

d; £31.00 charges

e; £10 DSAR fee

f; total £2867.02

g; 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.

7.

a; 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.

b; 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.

8.

a; 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.

b; 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 has made no serious attempt settle until I had already started this litigation.

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

[c_allen]

do i need to make a formal application and if so, how do i do this and, what form do i need, sorry if this a daft question but i was under the impression that it would just be considered in court on the day, as long it had been submitted before the court date:confused:

[c_allen]

well bundle nearly ready after I forgot all about doing it untill last friday:eek: , lesson learnt;' dont try to keep 6 cases going at same time:rolleyes: '

any help with above would be great, I mean about the application?????

[c_allen]

does anyone know the names of the cases that back up the principles of mutuality

[doo]

Have you read Bongs hsbc case?

[c_allen]

don't think so but will now thanx

[c_allen]

quick question,

i've sent in my bundle, they received it 17/4, 1 day early [due 18/4].

it's now 23/4 and i've received nothing from them, their now 5 days late, what can i do, is this going to work in my favour in anyway?

[GaryH]

Here you go - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/58011-sc-m-court-bundle.html#post485266

 

Don't bother sending the first one, just send the second straight off to the court, with a copy to Halifax's sols.

[c_allen]

cheers gary your a star

[c_allen]

letter printed and i'll take it into court this afternoon:D

[doo]

Good luck c.allen, I would say this is definately in your favour.

 

Court received defence today so am awaiting my copy - my 3 page letter should be arriving on cap one's desk in the morning.

 

Good luck, will be watching

[c_allen]

OK, i've just been onto the court, and the defence has sent in an amended defence:mad: , i can only assume that this is in response to me asking the court to throw out their defence;) , i'm not sure, but i thought that they had to have permission to amend the defence of the court? and me? am i right? either way what can i do:confused: , it's only 9 days until i'm in court:eek: . this isn't right. :mad:

[doo]

Have they given you a copy of this amended defence?

[c_allen]

no, i've just been into the court and they are sending me a copy. i've rung halifax and their going to ring me back in a bit allegedly:rolleyes: . it's been an hour since i rang them so i'll give another ring in 5 mins. let you know what they have to say

[c_allen]

it was filed on the 19/04

[suze1]

I have decided to take the step and have written my letter claiming unlawful charges of £1,202 that have been applied to our joint bank account. Could somebody please let me know which address I should send the letter to - would it be Head Office in Halifax? Also is it a good idea to send it by recorded delivery? Thanks Suze

[c_allen]

well when i finally got through she was just going into a meeting, coincidence, i think not

[doo]

Me thinks they are playing around with you, I bet she is sitting in her office having a cup of coffee.

[doo]

suze1 - Halifax Plc, Customer Relations, PO Box 548, Leeds, LS1 1WU. Start up your own thread in halifax forum and you will get lots of help and yes send everything recorded.

[c_allen]

she just rung back, they say theres no amended defence, but the courts told me twice that there is, she says that their sending a witness statement and thats all their using for their defence,

[doo]

In that case I would ring or preferably go to the court office tomorrow and if they again say they have an amended defence surely they have to give you a copy. By the way what is the difference in a witness statement, could this be what the court staff meant?

[GaryH]

Has the witness statement been served to you?

[c_allen]

no i've had no documents at all from them since december 06. they did say that i should receive the statement by wednesday, leaving me only 7 days before court. i'm adapting the letter i sent today [ the one you recomended:) ] but i'll PM you it before i do anything with it, to check if you don't mind???

[GaryH]

Yes, thats fine.

 

Also, have you read this thread - http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

 

The fist bit won't be relevant anymore, but you might find the last few sections useful. Also the other threads in the guidance notes will be worth reading.

[c_allen]

yep read all those already,banks took all my cash:mad: so i've no life:eek: , apart from reading everything on here that i can:cool: