kano24 v Citicards

[dj59]

Suggest you send something as follows, however you will have to fax this to Citi due to your timescale.

 

 

 

 

 

Citifinancial Europe plc

1 Exchange Quay

Salford

Manchester

M5 3EA

 

20th January 2007

 

Re: Claim number:

 

Dear Sir/Madam

 

I am writing with reference to your application to set aside judgment and which will be heard on 1st February.

 

Whatever you say, the fact is that is that it is most unlikely that in the event of a set-aside that you will go on to file a defence and proceed to trial.

I am well aware that you have failed to do so on several occasions and that you have even settled the case which was listed in the London Mercantile Court which it had been hoped would have been used a test case to put an end to all similar litigation.

You have only once succeeded and that was in Northern Ireland when you introduced last minute evidence without warning and persuaded the judge to receive it in secret.

Even that case is now subject to appeal.

I am fully aware of the presumption in favour of a set-aside and although I intend to object to your application, in the event that your set-aside is granted, I shall be asking the judge to adopt the proposed direction which I have attached to this letter.

 

As you know this is broadly the same direction as that which was given out at the Mercantile Court in London.

 

I am writing to suggest to you that if you will agree to the attached order, I shall withdraw my objection to the set-aside. This will avoid either of us having to attend court and of course it will save the court considerable trouble.

 

Please note that this is not a without prejudice communication. I shall be sending a copy of this letter along with the draft order to the court if you disagree.

 

Please let me know in 7 days.

Yours faithfully

 

 

 

 

 

 

 

 

 

In the xxxxx County Court

Claim number: xxxxxxxx

 

Between

xxxxxxxx - Claimant

 

and

 

Citifinancial Europe plc - Defendant

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[kano24]

dj, Thanks a lot for that. Will be sending it special delivery tomorrow

[kano24]

Response to the above letter recieved today.

 

"I note the comments you make and also the fact that nearly all are incorrect. That is no mean feat but then why allow any facts to obscure your prejudices or those of the website from which you downloaded this letter, it being the second such letter I have recieved today. It appears that you intend to litigate by rote and simply take on the misrepresentations of others.

 

I can assure you that my client defends almost all cases and that i have fought and won all of the cases I have allowed to go to court. You are correct in that, I do on occasion settle cases when I deem it uneconomical to attend a faraway court or when I deem it a tactical issue however, let me assure you that in your particular case I have ensured attendance at the County Court to deal with this case and then the subsequent full hearing.

 

Furthermore, I note that you give no aknowledgement of the £1593.27 which was your indebtedness to my clients business before charge off nor the fact that you have entered into an IVA thereby, in my submission, compromising your right to bring such a claim.

 

I regard these as material non-disclosures by you, the purpose of which was to mislead the court and I shall make representations to the court on this at the hearing and, more generally, about the fact that you have downloaded and used a precedent without giving it any thought and thereby allowed it to mislead the court about both my own and my clients record and the likely intentions in terms of this litigation.

 

Given the above, and the fact that you have not particularised in your claim form nor even paid my client the monies you seek but have merely done what every other claiment has done, namely look at the statements and assumed that because the default fee is recorded that you have paid it, in your own case conveniently forgetting the account was sold for a sum far in excess of your claim, I shall not agree to your absurd suggestion regarding the directions. This is a small claim and I shall make representation that it be treated as such in opposition to your view that it be treated as a Mercantile matter. Some, rare, cases may merit such treatment, your own is certainly not such a one but is rather a complete waste of the Court's time.

 

I have sent a copy of this letter to the court to ensure it is fully aware of the view I take of your claim and purported directions"

 

Signed by one and only, Brian Smith! What do you make of that?

[Stornoway]

Unbelievable.....Do you think MBNA is aware of the tone and arrogance of this guy's letters. I don't know if he is right or wrong but if it waa me I'd either be getting specialist legal advice (from this site or elsewhere) or trying to claim from one of the other banks in your IVA first and leaving these guys until you are more confident in your chances of success ? Good luck with the claim.

[gizmo111]

Unbelievable.....Do you think MBNA is aware of the tone and arrogance of this guy's letters. I don't know if he is right or wrong but if it waa me I'd either be getting specialist legal advice (from this site or elsewhere) or trying to claim from one of the other banks in your IVA first and leaving these guys until you are more confident in your chances of success ? Good luck with the claim.

 

Bomber could you explain the significance of the MBNA reference:confused:

[gizmo111]

Response to the above letter recieved today.

 

"I note the comments you make and also the fact that nearly all are incorrect. That is no mean feat but then why allow any facts to obscure your prejudices or those of the website from which you downloaded this letter, it being the second such letter I have recieved today. It appears that you intend to litigate by rote and simply take on the misrepresentations of others.

 

I can assure you that my client defends almost all cases and that i have fought and won all of the cases I have allowed to go to court. You are correct in that, I do on occasion settle cases when I deem it uneconomical to attend a faraway court or when I deem it a tactical issue however, let me assure you that in your particular case I have ensured attendance at the County Court to deal with this case and then the subsequent full hearing.

 

Furthermore, I note that you give no aknowledgement of the £1593.27 which was your indebtedness to my clients business before charge off nor the fact that you have entered into an IVA thereby, in my submission, compromising your right to bring such a claim.

 

I regard these as material non-disclosures by you, the purpose of which was to mislead the court and I shall make representations to the court on this at the hearing and, more generally, about the fact that you have downloaded and used a precedent without giving it any thought and thereby allowed it to mislead the court about both my own and my clients record and the likely intentions in terms of this litigation.

 

Given the above, and the fact that you have not particularised in your claim form nor even paid my client the monies you seek but have merely done what every other claiment has done, namely look at the statements and assumed that because the default fee is recorded that you have paid it, in your own case conveniently forgetting the account was sold for a sum far in excess of your claim, I shall not agree to your absurd suggestion regarding the directions. This is a small claim and I shall make representation that it be treated as such in opposition to your view that it be treated as a Mercantile matter. Some, rare, cases may merit such treatment, your own is certainly not such a one but is rather a complete waste of the Court's time.

 

I have sent a copy of this letter to the court to ensure it is fully aware of the view I take of your claim and purported directions"

 

Signed by one and only, Brian Smith! What do you make of that?

 

Don't know where he is getting the mercantile ref from - the directions from there were totally different.

 

If your account was sold how come Citi know so much about tyour finances - eg the IVA.

[dj59]

Ive read the contents of Mr Smiths letter before now let me think, ah yes I received an almost identical one yeserday. Talk about copying letters!!!!!:o

[Stornoway]

Bomber could you explain the significance of the MBNA reference:confused:

 

Sorry ...meant citicards...doh!

[gizmo111]

Sorry ...meant citicards...doh!

 

Ah that sorts my muddled brain out!

 

Regards your query as to weather Citi know the tone and arrogance of the letters that are being sent out - then I am sure they are - do a search for Enron (not our user) and you will see what this co is all about.

[hondamad21]

Hi Kano24,

 

Just wanted to say best of luck!

Yesterday I handed in my claim to the lock Sheriff Court against Citi Europe after wrongly suing Citi International.

 

Anyway I hope for the best for you!

 

Hondamad

[too strong]

Received a letter from CITI the day before I was due to hand in my AQ. This letter stated I would have no chance of succeeding with this claim.

 

Timing of the letter coincidental? I think not, but it gave me a laugh.

[Enron]

Remember to keep copies of all your correspondence to and from Citi.

[bigmama59]

Have you been to court yet?

[keren29]

You are correct in that, I do on occasion settle cases when I deem it uneconomical to attend a faraway court or when I deem it a tactical issue.

 

Interesting comment from Brian, basically he picks and chooses what to settle because it is too much effort?

[Enron]

Could you argue that they have been inconsistent in their approach to claims.

 

Surely if their position is right then they would have to defend all cases.

[kano24]

Hi guys,

 

Sorry I have been absent for a while. Computer packed up well and truly and have just bought a new one.

 

To update you all on what has been happening,

 

Citi got their set aside at the hearing but were ordered to file a defence within 14 days. This they did, at the final hour! I will post the full defence, hopefully tomorrow.

 

I have also recieved AQ from the court that has to be submitted by the 11th March.

 

Should I reply to the points in their defence now, or just wait until the hearing date?

[elsinore]

 

Should I reply to the points in their defence now, or just wait until the hearing date?

 

Probably better that you post the defence first, kano, in case it differs from previous ones.

My own view is that it is Better to use the AQ to try and obtain an Order for Directions. Hopefully, the arguments would then become unnecessary.

 

Els

[kano24]

thanks for that constructive comment

[lickthewallfatboy]

edited

 

nice quote from a total newbie with a perfect username if he is looking for help.

 

How many million quid have you helped people to win back??

 

TROLL-or bank mole......

[Enron]

edited

 

Yep, your not going to get thanked for a username like that.

 

Everyone is entitled to their viewpoint however I would be careful making comments like that.

 

Brian Smith is known to frequent here often and even take printouts to court. Whilst we might not agree with the stance that Citi or he has in relation to reclaiming charges, at the end of the day he's just doing his job.

[elsinore]

Let's hope a moderator sees that post and edits/deletes it. I also think the poster should be debarred from the use of that username.

 

Els

[brownefamily]

so what happened in this case? Where is the end of it?

[brownefamily]

sorry I misread the dates - I was looking at people's joining dates! Ignore my last comment...I look forward to seeing the conclusion in the cfuture

[kano24]

Ok, below is the defence recieved from Citi. Appologies for any spelling mistakes, had to re-write it all by hand!

• The defendant avers that the agreement with the claimant contains terms entitling the defendant to levy fees for late payment, exceeding the credit limit and returned payments, and avers that the claimant was aware of and agreed to the same before entering into the agreement.

• The defendant denies that the same are a disproportionate penalty or invalid under s4 UCTA 1974 or para 8, sch 2(1)(e) UTCCR 1999 or unenforceable at common law and puts the claimant to proof of this by specific reference to case law relied upon.

• The defendant denies that it unlawfully debited the claimants’ account during the term of the agreement. The defendant avers that the particulars of claim do not particularise either the individual amounts making up the claim or the dates upon which the amounts claimed arose and puts the claimant to strict proof of the amount of his claim.

• The defendant avers that the claimant’s contract terminated in November 2002. The defendant believes that the claimant is claiming for charges earlier than 2000 and the defendant avers that it has a Limitation Act defence to any charges levied prior to 6 years before the claim form issue date of December 2006.

• The defendant admits that, between December 2000 and October 2002, the claimant breached the contract on 16 occasions and the sum of £390, not £1025 as pleaded by the claimant, was debited from the claimants’ account by way of late payment, returned payment and over limit fees as per the Terms and Conditions of the Agreement

• The claimant is claiming as a money claim a sum equivalent to that which he claims was unlawfully debited to his account over the term of the agreement in late payment and over limit fees. This claim is entirely based on the recent OFT statement on the alleged unfairness of such default fees. The OFT stated that the level at which the default fees, though not the principle of default fee charging itself, was unfair in the context of the Unfair Terms in Consumer Contracts Regulations 1999. It also reported that the fees were, in its opinion, a penalty contrary to common law principles of damages for breach of contract.

• The defendant has agreed to abide by the OFT report and adopt a lower level of default fees which it has set at the new industry standard of £12. Over the lifetime of this account the claimant has set its default fees at £25 and £20.

• The claimants’ account with the defendant was consistently in arrears and was charged off and an IVA was entered into whereby the claimant agreed to pay his creditors 52 pence per pound. This was assigned to Max Recoveries Limited (“Max”) in or around 2006. At the time the debt was sold to Hillsden, the balance of the account was £1652.27 in debit, i.e., outstanding from the claimant.

• Normally, the defendant would make an ex gratia refund of a sum exceeding the difference between (i) the current default fee of £12 and (ii) the fees incurred by the claimant. However, as the claimant entered into an IVA whereby the defendant agreed to accept a lesser sum in respect of his indebtedness, the defendant avers it is a breach of or inconsistent with the terms of the IVA for the claimant to seek to bring an action against a creditor with whom he has agreed to compromise his debt. The IVA is in full and final settlement of the contractual rights of both parties there under, whether they be the creditor’s rights to seek more or the debtor’s rights to pay less via some sort of pay off.

• The defendant avers that the claimants’ is not a money claim but a damages action and further avers that the claimants’ interest calculation is not applicable to this action or, if it is applicable, that it is wrong and the defendant puts the claimant to proof that this interest is owed. Specifically, the defendant notes that the claimant has claimed interest from the date each default fee was incurred, rather than the date of any payment of such default fee by the claimant. As the claimant is a credit institution and not a deposit taker, it cannot set off default fees against money held on account. As such, it cannot be held liable for interest on a notionally paid debt rather than an actual one. The claimant had a current outstanding balance on his account held by Max and, as such, never paid the balance of his account, including the default fees imposed to the defendant. It is averred by the defendant that it is only from the time of any such payment that interest could have accrued on such payment as if it were a debt.

• Save as otherwise admitted, the claimant’s particulars of claim are denied and each and every allegation in the particulars of claim is specifically denied.

So, what do you think of that guys?

[elsinore]

So, what do you think of that guys?

 

Awful!

 

Els