LTSB sar and found PPI was selected - but not by me!

[citizenB]

I seem to recall there was another thread where LTSB actually admitted there was an "amendment" made to a document after the customer had signed the document. I will have a look for it.

 

It wasnt LTSB - it was NatWest

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?316796-Expert-believes-customer-s-signature-was-forged!!!

 

There might be something in the thread that could help you

Edited July 8, 2012 by citizenB

[Always Struggling]

And you are still looking for the relevant section of CCA in para 21, yes ?

 

Yes CB, had overlooked that. Wasn't sure on the relevant section to do with the fact they hadn't provided the paperwork etc.

 

Para 26 - "wilfully lying"

 

how about.. deliberately misleading.. or untruthful.. ?

 

It's strong words I know but I did like the starkness made by DB in his post... how about:

 

shows the defendant deliberately misleading and being untruthful to the extent he is either being fraudulant again (mirepresenting the facts by omission) and/or negligent by failing to investigate.

[Always Struggling]

I seem to recall there was another thread where LTSB actually admitted there was an "amendment" made to a document after the customer had signed the document. I will have a look for it.

 

It wasnt LTSB - it was NatWest

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?316796-Expert-believes-customer-s-signature-was-forged!!!

 

There might be something in the thread that could help you

 

Thx CB. Have seen this one before but had forgetten about it.

 

Have now added section 1 of the Forgery and Counterfeiting Act 1981 accordingly

 

Just need someone to be 'devils advocate' over my POC (post #98) now

[AndyOrch]

Hi AS

 

I will be around later this evening to run through your Statement of Case.

 

Regards

 

Andy

[Always Struggling]

Much appreciated andy thx

 

AS

[AndyOrch]

Hi AS

 

I have been through your SoC and to be honest Im struggling now:madgrin:

 

The bottom line is you want to claim miss sold PPI, it irrelevant if they did or didnt doctor the request for PPI this is a civil claim not a criminal one, so damages are a no go IMHO.

Simplify the claim and save yourself a great deal of cost and heartache.

 

Regards

 

Andy

[Always Struggling]

Hi andy, thanks for going over it. I guess it's a point of principle that I have stressed the fraud etc. Wanting to make it as clear as possible to a judge how I feel.

 

However, I do 'hear' what you're saying and as such have 'tweaked' it

 

P.S. After their letter came offering £233, I telephoned to reject it (letter is on it's way also), however, today I received a cheque from them for that amount and saying the matter is now closed. Cheeky beggars.

 

Should I return the cheque or keep it and what reference should be made in the POC?

 

Would appreciate your views again on the revised POC

 

1. On 16th November 2002, the Claimant entered into an agreement (“The Agreement”), regulated by the Consumer Credit Act (“CCA”) 1974, for the purposes of a running credit account provided by the Defendant.

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

4. The Agreement had the option to include Card Payment Protection (CPP – more commonly known as PPI – Payment Protection Insurance) by way of a selection box. The Claimant selected the option ‘no’ – (CPP was not required to be included).

 

5. The Claimant contends that the alteration of the Agreement to include PPI is a misrepresentation and an offence under the Misrepresentation Act 1967

 

6. The inclusion of the PPI was unfair within regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (‘the Regulations’), an offence under regulations 8 and 9 of the Regulations.

 

7. The Claimant contends that the Agreement, specifically the Claimants signature, has been used to facilitate the addition of PPI unlawfully and that the payment for PPI was to be funded by the Agreement leads the Claimant to conclude the Agreement has been used as a tool for an unlawful act and the Defendant is in breach of implied terms; the Defendant would construct an agreement lawfully and would act according to UK law.

 

8. The Claimant contends the Agreement to be one of uberrimae fidei and, leaving the points already mentioned to one side, the Defendant has failed to fully disclose the criteria required to ensure that the Claimant qualified for PPI to be included in the Agreement and as such if it had been known the Claimant could not have entered the Agreement with the inclusion of PPI as the Claimant was paid on a commission only basis in a temporary position and would not have qualified. The Claimant believes it is inconceivable that a person, within a multi-national company specialising in personal finance, would not have been given full training in the eligibility requirements for a product that provides a considerable boost to its profitability through commission and interest.

 

10.The Office of Fair Trading states that “PPI protects borrowers' ability to maintain repayments and should help them avoid getting into debt should they be unable to keep up their repayments due to accident, sickness or unemployment.” The Claimant contends that the CPP ‘sold’ in relation to the Agreement was never capable of meeting those requirements, and that both policies were missold.

 

11 The Claimant contends that the Defendant did not ascertain the Claimants suitability, and should have had the necessary training and experience to know that the policy was not suitable.

 

12. The Claimant also contends that there should have been a system of supervision and checking in place to ensure that such errors, omissions and misrepresentations were noticed, and corrective action taken, and if there was no such system in place, then that should also be considered as a failure of the Defendant to meet its obligations under the Supply of Goods and Services Act 1982.

 

13. The Claimant contends that by default it was never explained that the PPI payments would attract interest if the balance of the statement was not paid in full each month.

 

14. The Claimant believes that conflicts of interest put the Defendants staff in a position where future career path and financial gain was a prime motivator and because of this the Defendant did not maintain the duty of honesty and care that is a requirement in law and under the Banking Code, OFT Guidelines and the FSA Handbook.

 

15. In paragraph 12, the Claimant contended that there should have been a system of supervision and checking in place. The Claimant contends that the very fact that such a system was not in place, or that the system failed to identify the errors, omissions and misrepresentations highlighted elsewhere in these Particulars, should be considered as evidence of a policy of “turning a blind eye” by senior company management whose careers and remuneration are also reliant on bonuses, incentive schemes and sales targets.

 

16. The Defendant has stated in their correspondence on two separate occasions (one in direct response a Data Subject Access Request), dated xx/xx/11 and xx/xx/11, that the credit card account statements for the period prior to xxxx 2004 had been destroyed and were no longer available. The Claimant had requested information from the Defendant and its agent (Credit Security Limited) at the same time. The Claimant contends that statements for this period had not in fact been destroyed as the Defendant claimed because copies of statements had been passed on by the Defendant to Credit Security Limited who (after the defendant had replied) forwarded them to the Claimant. The Defendant, in claiming these were destroyed, has shown a failure to keep an accurate record/log of my personal data and its’ location, contrary to the principles of the Data Protection Act 1998 and was therefore not just negligent in the control of my personal data but also negligent (by omission) in its investigation to provide the requested information.

 

17. The Defendant states in their letter dated xx/xx/xx and in response to the data request (para5), that they are unable to locate any personal default notices due to the way in which they hold these records. This prevents the Claimant the ability to question the validity and accuracy of any such default notices contrary to DPA principles 4 and 5.

 

18. The Defendant has failed to fully comply with a request made under section 78 of CCA 1974 dated xx/xx/xx. In direct response to the Claimants sect.78 request of CCA 1974 the Defendant sent a reconstituted version of the agreement. The reconstituted version failed to include all financial aspects of the agreement - as stated by Judge Waksman (Carey v HSBC 2009) In the Defendants response dated xx/xx/xx the Defendant referred to clarifications given by Judge Waksman (Carey v HSBC) in respect to reconstituted versions of an agreement. The Claimant asks the court to consider if the Defendant did omit a financial section of the reconstituted agreement deliberately or by failing to compile all the relevant information with due diligence, contrary to regulation 10 of the Regulations. The Defendant has stated specific knowledge of the aforementioned ruling regarding reconstituted versions yet still failed to abide to the rulings and the Defendants own reference to knowledge of this fact.

 

19. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned.

 

20. The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable for breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

21. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

22. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 2% of the amount owed or £5 (whichever was the greatest) on time even if the Claimant did not get his statement.

(d) In addition the Defendant was entitled to charge default charges (“the Charges”) for “reminders and other expenses” resulting from the Claimant breaking conditions. The Claimant was to ask if he wanted to know what these default charges were as they were not published within the terms.

 

23. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

24. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

25. At all material times the Claimant was a consumer within the Regulations.

 

26. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

27. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(a)The terms relating to Charges were standard terms; they would not be individually negotiated.

(b)The Charges were a penalty for breach of contract.

©The Charges exceeded the costs which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(d) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(f) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(g) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(h) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

28. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and rely on the following matters.

(a) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

(b) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

© The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

29. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

 

30. By reason of fraud, concealment or mistake the Claimant claims repayment of CPP and charges older than the normal 6 years by virtue of s32 (1)c Limitation Act 1980 as per the case of Kleinwort Benson v Lincoln City Council.

 

31. In considering this, and all matters in this claim, the Claimant asks the court to take into account the following Principles of Business which are legally binding on the Defendant,under the Financial Services & Markets Act 2000, and are contained in the FSA Handbook:

 

Principle 1 Integrity - A firm must conduct its business with integrity.

Principle 2 Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

Principle 3 Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

Principle 5 Market conduct - A firm must observe proper standards of market conduct.

Principle 6 Customers' interests - A firm must pay due regard to the interests of its customers and treat them fairly.

Principle 7 Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

Principle 8 Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

Principle 9 Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

 

33. The Defendant unlawfully charged for CPP totalling some £xxx.xx between 01/12/2002 and 01/12/2003. Particulars appear from Schedule 2.

 

34. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between 01/12/2002 and 01/12/2003. Particulars appear from Schedule 2.

 

 

And the Claimant claims:

 

(i) A refund of the unlawful Card Protection Payments totalling £xxx.xx

 

(ii) A Payment of the above sum of £xxx.xx with interest in restitution of £xxxx.xx (Total - £xxxx.xx) as per the case of Sempra Metals v Inland Revenue Commissioners.

 

(iii) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account.

 

(iv) A Payment of the above sum of £xxx.xx with interest in restitution of £xxx.xx (Total - £xxx.xx) as per the case of Sempra Metals v Inland Revenue Commissioners.

 

(v) Interest under Section 69 of the County Courts Act 1984 at the rate of 19.9% per annum on the amount claimed daily rate of £x.xx until judgement or sooner payment.

 

(vi) Repudiation of the agreement.

 

(vii) Court costs.

 

STATEMENT OF TRUTH I believe that the facts stated in these Particulars of Claim are true

Edited July 11, 2012 by Always Struggling

[Always Struggling]

Bump: Do I send the £233 cheque back or keep it and make reference to it in the POC?

[Always Struggling]

Could do with some advice on the cheque they have sent me, asap anyone please.

 

Will allow me to word my reply letter to ltsb correctly and include reference to it in POC,

 

Thanks

 

AS

[victoria_siempre]

Hi AS

 

The cheque is extant for 6 months; so 0one might do both, as it were, or might be.

 

x

 

 

v

Edited July 11, 2012 by victoria_siempre

[Always Struggling]

Hi victoria... I ask this realising I might sound a bit dim lol....

 

What does that mean... one might do both

[victoria_siempre]

Hi AS

 

In war, always keep options open: the cheque is valid for 6 months so their is no rush to cash it; its issue is an admission of sorts so we're arguing about amount rather than principle.

 

x

 

v

[Always Struggling]

Ah ok. So keep the cheque and make a note of it in the POC then? Ty

 

AS

[Always Struggling]

I am unsure what to do with the claim amount as I will also be claiming the repudiation/void of contract.

Where the N1 asks for an amount in monetry terms what do I put in?

 

Do I just fill in the amount calculated for PPI/Fees and the repudiation / void is decided in court or do I have to claim a set amount for a void contract etc?

 

Thanks

 

AS

[victoria_siempre]

Hi AS

 

I am not a legal chap, however it seems to be reasonable to seek recompense for your losses (in the eye of he beholder).

 

x

 

v

[Always Struggling]

In the amount claimed, because of me claiming contract void/repudiated, do I just put 'up to £5,000' and this would keep it in the small claims?

[AndyOrch]

Yes AS

 

Andy

[Always Struggling]

Thanks for confirming andy

 

AS

[Always Struggling]

Last couple of things for claim.

 

The interest rate in restitution is going to be 21.9% (8% + 13.9%) as I understand 'sempra'

 

How do i work out the daily rate for s69 @ 21.9 please

[Isiris]

;ll;l

[Always Struggling]

;ll;l

 

Looks complicated Isiris, could you elaborate please lol

[AndyOrch]

To claim section 69 interest you first have to work out the total amount of your claim - excluding interest and court fees. You are entitled to claim interest at 8% per annum on this amount. Work out the 'daily rate' by multiplying 'the amount of your claim' x 0.00022. You also need to count up the number of days from when the money became due up to the date on which you issue the claim. Multiply the daily rate by the number of days to work out the 'interest so far'.

 

 

Regards

 

Andy

[Always Struggling]

Need something checking please andy in respect to s69.

 

On the thread here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?344065-Barclays-credit-card-charges&highlight=credit+card+fees

 

From my understanding of slicks' post #17 is s69 can be claimed at the same rate being claimed in restitution, just at a simple rate rather than compounded.

 

Can you please confirm. Thanks

 

AS

[AndyOrch]

The norm is 8% sec69 on claims above 5K however i will point you to the CC Act 1984 3. (b)

 

 

(3)Subject to [F1rules of court], where—

 

 

(a)there are proceedings (whenever instituted) before a county court for the recovery of a debt; and

 

 

(b)the defendant pays the whole debt to the plaintiff (otherwise than in pursuance of a judgment in the proceedings),

 

 

The defendant shall be liable to pay the plaintiff simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt for all or any part of the period between the date when the cause of action arose and the date of the payment.

 

And 5..(5)Interest under this section may be calculated at different rates in respect of different periods.

 

http://www.legislation.gov.uk/ukpga/1984/28/section/69

 

Regards

 

Andy

[Always Struggling]

So I could keep it at 21.9% (simple interest) on the whole amount of the claim if I chose?

 

Would you think it advisable to do so andy?.

 

Or would you suggest to claim it at the more traditional 8% and therefore more acceptable with a court?