Urgent help needed. Default incoming on disputed account!

[Keasby]

Hi there. These are the POC's I'm going to send with forn (I think) N215. The lady at the court said I could send that along with a covering letter. I'll admit my original POC were scant as I expected to be stayed for a good long time only to find the test case ended. Any advice is greatly appreciated.

Particulars of Claim

The Claimant has an account xxxxxxxxx("the Account") with the Defendant which was opened on or aroundxxxxxxx

 

1. The account was conducted on the basis of the defendant’s own standard terms and conditions.
   
2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999
   
3. During the period in which the Account has operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.
   
4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts, returned cheques, failed direct debits and so forth.
   
5. The Defendant also charged interest on the charges which were applied.
   
6. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.
   
7. A list of the charges applied is attached to these particulars of claim.
   

The Claimant contends that:

Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred 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 extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

 

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

 

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because

 

a. They are contrary to the requirement of good faith.

b. They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

 

• Bank accounts have become a basic essential service
  
• The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.
  
• There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.
  
• These banks exercise a collective dominance in the market.
  
• The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.
  
• The charges exceed actual costs by several thousand percent
  
• They are applied unilaterally in a standard form contract without the possibility of negotiation
  
• The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers
  
• The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.
  
• The customer had no means of assessing the fairness of the Charges at the time of entering the contract
  
• The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.
  
• Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.
  
• The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".
  
• The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges
  
• The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.
  
• The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.·
  As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.
   
   
   
   
  11.In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.
  

 

12. The Supreme Court has indicated in its judgment of the 25th November 2009 that unfairness under reg.5 UTCCR 1999 may provide a basis for challenging bank charges.

 

 

 

 

 

Accordingly the Claimant claims:

 

a) the restitution of the amounts debited in respect of charges in the sum of £ xxxx

b) Restitution of interest charges which have been paid on the above charges in the sum of £xxxx

c) Restitutionary damages to be assessed by the court

 

 

Court costs or other costs as allowed by the court;

I believe that the contents of these particulars of claim are true

 

[citizenB]

TBH, I think you would be best advised to wait for the advice from the CAG team who are working on the new POCs.

 

What date do you need to submit a response by ?

[Keasby]

I'm not sure when I need to respond by. All Corbets/Natwest have done is acknowledged to say they are going to defend.

 

Am I right in thinking they now have another 14 days to file a defence or ask for more time (as the left it to the last minute to acknowledgement).

I got the form number wrong but I think I can still ammend them but can I still do it after the defence has been filed?

[ieuanMr]

URGENT!

I think you may have made a mistake by listing punative damages!

 

You would be better served by claiming unfair charges and an Unfair Relationship under OFT Guidlines 854 relating to the Enterprise Act 2002 where these guidelines interpret Consumer Credit Act 2006. OFT854 is a very powerful documents and will make an iron clad case for the claiming of Unfair Charges of banks.

 

You may ask the court if you may amend your claim but this does put it back another 2 weeks, but I think you should.

 

http://www.oft.gov.uk/shared_oft/business_leaflets/enterprise_act/oft854.pdf

 

regards

 

Ieuan

[Keasby]

Thanks for that- I took these from the Nov 25th update on the templates but I think you have a point there. I'm going ot be ammending them anyway as what is above was not my original POC.

[caro]

The defendants will have 28 days from date of service if they've acknowledged, but that doesn't mean you have to amend within that time. There's still likely to be a good wait until your case is heard, so I honestly think you will be best to hang fire until we have a new professionally prepared POC which you can use to amend your claim.

 

The only problem might be if they apply to strike out your claim, but without seeing the POC we can'tjudge. Plenty of cases went through MCOL pre test case, but latterly CAG advocated using N1 and serving at court as there isn't the limitation in terms of space, but it's very early days yet so let's see how things develop.

 

In the meantime read up as much as you can so that you fully understand the issues and you'll be able to prepare the strongest case you can, and counter any arguments they may throw at you.

[Keasby]

Hi, its been a while since an update. They've sent through a defense that I now need to trawl through. Does anyone know what the next stage is? Should I scan some elements of it and post or PM a mod person?

Its all a bit real and scary now, lots of legalese.

 

Happy Christmas by the way.

[ieuanMr]

You should read the defence very carefully and if yuo don't undertsand it get an admin to help or even take it to a solicitor to help undertsand it. Then you have to decide if you have to alter it.

 

One guy onhere was told by the oppsoite lawyers that eh should provide a remedy for his action and ignored this and lost his case.

 

In English law if you make a complaint to the court you have to provide a remedy i.e. ask for damages or ask for the situation to be remedied. Failure to ask for a remedy invalidates your claim and it cannot be acted upon. make sure you have described the remedy that you require.

 

regards

 

ieuan

[Keasby]

thanks for that. I've had a good read and think I understand. Is there any advice about filling in the application questionairre?

[citizenB]

Right, this is a credit card charge claim issued by you, yes ?

 

What AQ is this.. an N150 or N149 ?

 

Some links below might help you complete.

 

 

 

 

Link Financial County Court Summons - N150

 

Directions for N150 or N149 Allocation questionnaire - Paul's guide to N149 & N150 AQ's

 

Allocation Questionnaire...Urgent help needed please!!! - N150

 

Court papers received- what now??!!**WON**CASE DISMISSED - N149 (with draft order for directions)

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

 

HTH

[Keasby]

Hi there, I've sent the AQ and I think it's all ok. Waiting for the next stage by preparing the docs I'm going to use. I recieved Cobbetts AQ yesterday and it is asking for a stay until the Abbey vs others case is resolved. Am I right in thinking this is/was the test case that has indeed been resolved.

 

It makes me think that Cobbetts are just hitting the standard reply button every time.

 

Oh by the way this is for Bank charges, not credit card charges.

[citizenB]

Hi there, I've sent the AQ and I think it's all ok. Waiting for the next stage by preparing the docs I'm going to use. I recieved Cobbetts AQ yesterday and it is asking for a stay until the Abbey vs others case is resolved. Am I right in thinking this is/was the test case that has indeed been resolved.

 

It makes me think that Cobbetts are just hitting the standard reply button every time.

 

Oh by the way this is for Bank charges, not credit card charges.

 

Is this the OFT v Banks case heard in the supreme court ?. If so, judgement was handed down on 25th November last year ??

[Keasby]

I think it is the OFT case, I'll check the exact name when I get back but I seem to remember the OFT case being refered to as Abbey and others vs. someone.

 

The fact that judgement has already been passed (as you say in november) makes me a bit suspicious about their actions. Why ask for a stay until a case has been settled when the case has been settled? Do you think it is a mistake on their part?

[ieuanMr]

The Bank Charges issue has been decided against us three weeks ago and the OFT pulled out on UTCCR 1999.

 

So unless you have a different case or reason for claiming bank charges it is all over, sorry.

 

Ieuan

[Keasby]

Hi there, just need to check something. Although this is joint account I only put my name on the court papers. The maggots at 'Triton Credit Services' (aka natwest) are now constantly ringing for my partner (the other name on the account). Can they do this or is the account in dispute for both names regardless of who is on the court papers?

[Keasby]

Just got a letter 'General form of Judgment or Order' asking for the case to be struck out as it is the same as the test case. I need to prove it is not but how! Are there new PoCs I can use?

[citizenB]

Keasby, can you please confirm if the claim you have against the bank is for Credit card charges or overdraft bank charges ?

 

Thanks

[Keasby]

They are for a current acount and the charges are a mix of overdraft fees and bounced cheque/DD etc charges.