Santander - Going to court please help with POC

[tnook]

Hi everyone,

 

Santander are getting nasty regarding my overdraft which I have been disputing for a while and threatening to default me. I am drafting a POC which combines my Credit Card and Current Account charges.

 

The approach I am using is that my excessive Santander Credit Card charges, which I paid, lead me into debt where I had to rely on my Santander overdraft, the charges on the overdraft are a result of the cycle of debt and also unfair in general (BCOBS).

 

Can someone have a look at my POC and let me know what they think? I need to get this sent off to the courts asap to keep the collections department at bay.

 

Thanks.

tnook

[tnook]

This is as far as I got with the POC, any help would be greatly appreciated:

 

Santander Particulars of Claim

 

Credit card charges

 

Claim No [ ]

 

IN THE XXXXX COUNTY COURT BETWEEN

 

XXXXX

 

Claimant

 

and

 

Santander PLC

 

Defendant

 

PARTICULARS OF CLAIM

 

1. The Claimant holds two accounts with the Defendant for a Credit Card and a Current Account.


 

2. The Defendant has applied many Credit Card charges. The Claimant paid these charges and was forced by the Defendant into an adverse financial situation and beyond the overdraft limit of the Claimants Current Account with the Defendant.


 

3. The Defendant then applied further charges and interest on the Current Account overdraft.


 

4. The Defendant has marked the Claimant’s credit record at credit reference agencies.

 

Credit Card


5. The Claimant entered into an agreement (“The Credit Card Agreement”) with the Defendant on or around October 20XX, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no XXXX (“The Credit Card Account”). Credit cards are not included in the Office of Fair Trading’s Claim No. 2007 Folio 1186.


 

6. “The Credit Card Agreement” essentially consisted of the Defendant providing the Claimant with a credit card (“The 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.


 

7. The Credit Card Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.


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

 

8. Throughout the course of the Credit Card Agreement, the Defendant has added numerous default charges to the Credit Card 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. (Full particulars are set out in schedule 2).


 

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

A penalty payable on breach of contract and thus unenforceable: and or

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

 

10. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Credit Card Account.

 

The Credit Card Charges

 

11. The standard Terms of the Credit Card Agreement in substance provided as follows:

(1) The Defendant would provide the Claimant with the Credit Card. The Claimant was entitled to use the Credit 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.

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

(3) The Claimant was to pay the minimum payment of 2.25% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(4) In addition the Defendant was entitled to charge default fees (“the Credit Card Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Credit Card Charges are currently £12. Prior to 2006 the Credit Card Charges were £25.

 

Penalty

 

12. The Credit Card Charges were payable on breach of contract by the Claimant.

 

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

 

14. In the premises the Credit Card Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

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

 

16. At all material times the terms of the Credit Card Agreement providing for the Credit 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.

 

17. 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 Credit Card Agreement, and of each revision to the Standard Terms.

 

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

(2) The Credit Card Charges were a penalty for breach of contract.

(3) The Credit Card Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Credit Card 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.

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

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

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

 

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

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

(2) 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).

(3) The Credit Card Charges are correctly described as default charges by the Defendant in the published tariff of charges.

 

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

 

20. The Defendant wrongly applied Credit Card Charges to the Account totalling some £XXX.XX between XX/XX/XXXX and XX/XX/XXXXX. Particulars appear from Schedule 2.

 

21. For charges applied to the Credit Card Account in excess of six years, the Claimant will rely on s32(1)© of The limitation 1980.

 

22. On XX/XX/XXXX the Claimant demanded repayment of the sums wrongly applied.

 

23. The Defendant has repaid some Credit Card Charges, £XXX remain outstanding.

 

Current Account

 

24. The Claimant entered into an agreement (“The Current Account Agreement”) with the Defendant on or around XX/XX/XXXX, whereby the Defendant was to provide a current account services with an overdraft facility, Account no XXXXXX (“The Current Account”). 


 

Breach of Statutory Duty

 

25. The defendant is a firm regulated by the FSA under the Financial Service and Markets Act 2000 and as such is subject to the Banking Conduct of Business Regulations (BCOB) 2009 which requires inter alia that firms treat their customers fairly (R.5.1.1).


 

26. The Claimant is a consumer as defined in the FSA Sourcebook


 

27. In breach of their statutory duty to the Claimant, the Defendant acted unfairly in that they applied an overdraft to the Claimant's basic account when it had been contractually agreed that no extended overdraft facility would be provided and furthermore the defendant proceeded to apply charges to the said extended overdraft in respect of exceeding the said extended overdraft.

 

Description of Unfairness

 

28. The Defendant's treatment of the Claimant was unfair, not least because:-

 

(1) The Claimant has held an account with the defendant for 5 years

(2) The for the most part been run satisfactorily

(3) The Claimant’s Credit Card charges forced the Defendant into further debt

(4) The Claimant has enjoyed the use of an overdraft for 3 years

(5) The Defendant has always encouraged the use of an overdraft.

(6) The Claimant has come to depend on the overdraft facility.

(7) The Defendant has marked the Claimant’s credit record at credit reference agencies.

 

29. By virtue of the above unfairness the Claimant has suffered loss and inconvenience

 

Particulars of loss

 

30. The Claimant has applied £XXX in charges and £XXXX interest on the Current Account.

 

:ADD SCHEDULE OF CHARGES

:ADD LIST OF FAILED LOANS

:You should list out each item of loss you have suffered - e.g:-

:Higher cost of credit - £xxx

:Cost of phone calls - £XX

:Cost of postage and special delivery costs £XX

 

:Total - £XXX.XX

 

Particulars of inconvenience

 

31. The Claimant was unable to purchase food for himself and for his children and was obliged to seek help from family and friends.

 

32. The Claimant has been prevented from accessing credit, mortgages, car loans and been restricted in the jobs the claimant is able to apply for because the Defendant adversely marked the Claimant’s credit file. This has forced the Claimant to use the Defendant’s Credit Card and be tied to its high interest rate.

 

Remedy:

 

33. And the Claimant claims:

 

(1) A declaration that the sums totaling £XXX.- have wrongly been applied to the Credit Card Account.


(2) A declaration that the sums totaling £XXXXX.- have wrongly been applied to the Current Account.


(3) The Claimant will rebut any assertion from the Defendant that any part of the claim is excluded by default of a time limit and declares that the claim is made under s32 (1) The Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.


(4) Payment of the outstanding Credit Card charges sum of £XXXX.- applied by the Defendant.


(5) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Credit Card Charges to date in the sum of £XXXX, and at the daily rate of 0.022% until judgment or sooner payment.


(6) Payment of the said Current Account charges sum of £XXX.- and interest of £XXX applied by the Defendant thereon.


(7) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Current Account Charges to date in the sum of £XXXX, and at the daily rate of 0.022% until judgment or sooner payment.


(8) Removal of all late and default notices held at Credit Reference Agencies regarding the Claimant’s accounts made by the Defendant.


(9) And the claimant claims £XXX compensation for actual loss plus damages not exceeding £XXX for inconvenience to be decided by the court plus interest pursuant to s.69 County Courts Act 1984

(10) Court costs of [ xxxx].

 

I believe that the facts stated in these particulars, comprising of XXX pages, are true.

 

Dated

 

 

Signed

 

 

 

 

 

Schedule 2

 

From Credit Card Terms and Conditions 2007

 

2.1 You may use your Card and Account for Transactions up to the credit limit, although the amount you owe us for Cash Transactions at any one time cannot be more than 50% of the credit limit.


5.1 You must make payments to be received by us, by the payment due date shown in your statement. Payments will reduce your balance only when they are then credited to your Account. Your statement will give you guidance on when to make payments by different methods so that they reach us and can be added to your Account on time.

 

From Key Financial Information 2007

 

Amount of Credit:

We will choose your credit limit and tell you what it is. We may vary it at any time and write to let you know. The maximum credit limit that you can have under this agreement is £6,000.

 

Minimum repayment:

Each month you must pay at least the minimum payment set out in your statement. The minimum payment will be the lesser of:

● 2.25% of the balance shown in your statement

(minimum £5, or the full balance if less than £5); or

● the total of payment protection premiums plus

interest and fees charged on the statement, plus £5.

 

Default charges:

£12 for going over your credit limit.

£12 if your payment is late

£12 if your payment is returned.

You can avoid paying additional charges by staying within your credit limit and ensuring that payments are received on time.

 

Edited February 19, 2013 by tnook

[BankFodder]

I'm sorry I didn't see this earlier.

Have you issued this?

[tnook]

I've made a few tweaks but not sent it yet.

Was planning on sending it on Monday.

[BankFodder]

Please don't send it. We can make it more effective, but also I don't think that it is correctly focused.

Let's have a look at it on Monday/Tuesday

[tnook]

Much appreciated.

I've made some changes since my earlier draft above.

Shall I email the current POC to you?

 

Thanks.

[BankFodder]

Not yet. Thanks.

 

Firstly I think that you are trying to do much at one go

There are a number of issues here. The current account charges is the Holy Grail. I think that it is achievable but it has never been tried before and there are others who disagree with me.

 

If you don't mind me saying, I have the feeling that you have not done this kind of thing before and I think that you should try it bit by bit and begin with the parts which you can easily win. That means the credit card charges.

Next, you don't seem to realise that you now have to start your action online using the Moneyclaim service. This gives you only about 1024 characters. If you have more to say - then you tick a checkbox and you send a more detailed POC after the short one has been served.

Next, I'm sorry to say that your POC is verbose. You don't need to use all of this convoluted language and cetainly not "without prejudice" all of the time - or at all. Your style is at least Dickensian and maybe even Marxist -

 

I think that it would be a good idea to start form the beginning. How much were they charging you in credit card charges, over how long a period and what is the total.

[BRIGADIER2JCS]

Without Prejudice is a dangerous phrase and has and does cause many problems.

 

Bankfodders advice is correct you really need to keep this a simple and straight forward as possible.

[postggj]

Why are you putting Without Prejudice on a POC

 

Without Prejudice is used as confidential correspondent between the claimant and respondents legal parties, and are exempt from court proceedings unless by equal agreement or a costs issue after judgement

 

The judge will look at that POC and end up missing the point through boredom, It is far to long and defeats the object

 

All i will say is USE THE FINANCIAL OMBUDSMAN SERVICE before you issue a claim, the court will have expected you to have tried some sort of mediation before bringing a claim the attention of the court.

 

Have you made an official complaint to Santandar, have they issued a full and final response? They have 56 days to comply

 

Have you issued a formal letter before action as to Practice Direction? (CPR)

 

My last point will be that your argument seems to be the way that you have incurred charges, and one leads onto another. These are contractual issues with the bank. You will have to substantiate that these are unfair terms and that the bank is gaining an unjust enrichment through those contractual terms.

 

My advice will be to go through the banks own complaints procedure first, then the Financial Ombudsman, or you will have to have very deep pockets when costs become an issue

Edited June 10, 2013 by squaddie

[BankFodder]

I'm sorry but I disagree about any prejudice caused by deciding not to use mediation. If there is any risk of prejudice then it would be flagged up in a Practice Direction and I am not aware that it has.

 

If this is a small claim - less than £10k - then costs will not become an issue

[Old Cogger]

O.H. was sent N181 to fill in which we did and ticked mediation o.k. but the actual reference in the Directions was N180 so we down loaded N180 as it stated allocated small claims, meantime a N180 received from A.K. solicitors arrived and it had ticked no mediation, so we sent N180 the same as they seem to have refused mediation, but at least a N181 already sent to court shows originally willing>.

[BRIGADIER2JCS]

IMO squaddies advice is misleading, take Bankfodders advice!!

[postggj]

I'm sorry but I disagree about any prejudice caused by deciding not to use mediation. If there is any risk of prejudice then it would be flagged up in a Practice Direction and I am not aware that it has.

 

If this is a small claim - less than £10k - then costs will not become an issue

 

There is no power to compel parties to use Alternate Dispute Resolution. The Civil Procedure Rules have been updated to facilitate and encourage the use of ADR as part of case management

 

In the case of Susan Jane Dunnett V Railtrack PLC (2002) 2 ALL ER 850,

 

Mrs Dunnett sued Railtrack. Even though Mrs Dunnett lost the claim against Railtrack, it was Railtrack who had to pay her costs as well as court costs. The reason being that the court had suggested mediation, and that Railtrack solicitors refused even to consider it.

 

The court decided that the claim could have been decided by skilled mediators before being brought to the attention of the court.

 

Even though Railtrack won the case, they were responsible for costs as they failed to consider ADR

 

IMO squaddies advice is misleading, take Bankfodders advice!!

 

I do not consider quoting established Case Law as bad advice

 

I will also quote from

 

Hurst v Leeming (2002) EWHC 1051

 

This held that an ubjustfied failure to give proper attention to the opportunities afforded by mediation, and where mediation offers a realistic prospect of resolution, adverse consequences may be attracted. Failure to apply ADR may result in what courts now call

 

"adverse consequences"

[BankFodder]

Thank you. Very interesting.

 

Here is the link to the case - http://www.cedr.com/library/edr_law/Dunnett_v_Railtrack.pdf

 

What I can say here on a brief reading is that firstly, the court was very reluctant to find against the claimant - and in fact the only reason that they did so was because the case had been badly handled by her first legal team.

It is quite clear that the court that had the case been properly handled, that she would have won.

I think that because of this the court was at pains not to penalise her any further than the loss of her horses. They also felt very strongly that Railtrack were responsible for the accident and so I think that their eventual decision as to costs was partly to express a certain understanding the claimant's position and to express disapproval of Railtrack.

Courts have a lot of discretion as to costs and often use them to send messages to the litigating parties and of course, Railtrack being so hard-nosed about ADR didn't help them

 

Also, the case started in the County Court in 1996. I don't know what the limits were then but it might have been a fast Track claim - so costs might well have been an issue anyway

 

I don't think that this decision has much bearing on the majority of small claims where costs aren't an issue in the first place.

[postggj]

The point being made is that parties to a claim are expected to use all necessary opportunities at there disposal before putting the dispute in front of a judge

 

That includes a formal complaint, waiting the required time span for a reply to that complaint, using bodies such as the FOS as an example

 

The courts will expect these dispute resolutions to have been used first, including ADR where applicable

[tnook]

Hi thanks for the feedback. The POC on here was an early attempt at joining existing POCs for Credit Card Charges and Current account charges on this site.

 

I linked the two because I want to drive the point that covering their excessive credit card charges put me in further debt with my overdraft. So I won't just be relying on POC for the current account.

 

Wasn't aware that you had to start the claim online now, I checked last month and the courts website gave me two options, first online, second via the post.

 

I am under pressure to get this in motion as the bank are threatening to Default me over the current account charges.

[BRIGADIER2JCS]

Thank you. Very interesting.

 

Here is the link to the case - http://www.cedr.com/library/edr_law/Dunnett_v_Railtrack.pdf

 

What I can say here on a brief reading is that firstly, the court was very reluctant to find against the claimant - and in fact the only reason that they did so was because the case had been badly handled by her first legal team.

It is quite clear that the court that had the case been properly handled, that she would have won.

I think that because of this the court was at pains not to penalise her any further than the loss of her horses. They also felt very strongly that Railtrack were responsible for the accident and so I think that their eventual decision as to costs was partly to express a certain understanding the claimant's position and to express disapproval of Railtrack.

Courts have a lot of discretion as to costs and often use them to send messages to the litigating parties and of course, Railtrack being so hard-nosed about ADR didn't help them

 

Also, the case started in the County Court in 1996. I don't know what the limits were then but it might have been a fast Track claim - so costs might well have been an issue anyway

 

I don't think that this decision has much bearing on the majority of small claims where costs aren't an issue in the first place.

 

Have to agree this would have little merit in 99% of small claims cases today and is confusing this matter further.

[BankFodder]

You don't drive the point home in your POC. You do that in your supporting arguments at the hearing.

[BRIGADIER2JCS]

May I suggest getting andyorch to look in on this?

[postggj]

May i ask why people are trying to link this all the time with a court ADR to confuse matters

 

Alternate dispute resolution can mean the Ombudsman the organization is attached to, or a recognized Trade Body

Edited June 10, 2013 by squaddie

[tnook]

Bit of background, been down the FOS route and it go me nowhere after almost two years in the system.

[postggj]

When was the last time you had any contact with the FOS

[tnook]

When was the last time you had any contact with the FOS

 

The FOS said no and said they would not pursue it further. It was slightly over the 6 months reply period because I delayed and tried to mix the CC & Current account. The only route now is County Court.

[postggj]

The problems i can see with this is that these charges are contractual, and agreed

 

Have you tried reclaiming back any penalty charges yet from the bank

[tnook]

Ok keen to get this going

 

Is my joint case too complex? Should I split it into two cases then? Credit Card charges then Current Account?

 

I was hoping to leverage the credit card charges as unfair debt. Can I still do this if the cases are separate?