1st Credit Claimform - OHs Halifax OD - want to defend mostly penalty charges

[AndyOrch]

Can you bring forward the particulars of claim Jan...I cant check a defence without seeing the points raised.

[superstarjan]

here it is:-

 

1. The claimant claims the sum of £1010.82 for debt and interest. The first defendant from **** held an account with Bank of Scotland and it was an assigned account. The second defendant is a joint account holder.BOS granted the first defendant and second defendant an overdraft facility.

 

2.BOS demanded repayment of the outstanding sum on the account at that time. The account was in default on 4.9.10 and the outstanding balance was £1010.82

 

3.On ***** the debt was assigned to 1st credit in the sum of £979.53 Notices of assignment were sent to the defendant in accordance with s.136 law of property act 1925.

 

AND THE CLAIMANT CLAIMS

 

1 the sum of £979.53

2. Statutory interest pursuant to section 69 of the county court act 1984 at a rate of 8% per annum from ****** and thereafter at a daily rate of £0.21 until judgment or sooner payment

[AndyOrch]

Thank you will check it shortly.

[AndyOrch]

Jan did you (both) request the overdraft facility...or was it forced on you so they could charge a monthly fee for all the nonsense you would never use?Or was it to consolidate any existing debt with BoS?

[superstarjan]

I think it was part of the account from the start, but I'm not positive because I didn't open it. (I was added on to account and then taken off after about a year and then put back on by the judge last week)

 

It was not to consolidate any debts

 

I do know that when the charges changed to £5 a day that he was given no option to pay the balance off in installments and he couldn't have ever afforded £5 a day, so it was a downward spiral that they must've known would happen

[AndyOrch]

Okay let me run through it later....btw the Judge didnt put you back on...he put you on the claim...not the agreement...well not unless he nipped out to your branch and applied for you to be re added to the account:madgrin:

[superstarjan]

hahaha

[AndyOrch]

Jan have you by any chance any statements since you were removed showing the account in his name only?

[superstarjan]

Unfortunately my name was still on the address bit, but not on the statement bit, I always just assumed that it was copied and pasted from previous ones and therefore not amended by any admin staff. My name is definitely not at the the top of the statements though

[AndyOrch]

Okay but its still on...forget that then you are still liable as per the Judges orders.

[AndyOrch]

Defence now corrected and adjusted.

[superstarjan]

Thank you very much

[superstarjan]

This is the witness statement we have received for the upcoming hearing:

 

I am the in house solicitor in the employ of the 1st credit limited and I have conduct of this matter on the claimant’s behalf. I am authorised by the claimant to make this witness statement and the contents of this witness statement are true to the best of my knowledge, information and belief unless otherwise stated in which case I believe them to be true. There is now produced and shown to me in exhibit ‘LC2’ various copy documents to which I shall refer by page number.

 

I make this statement in support of the claimants claim

 

Background to the claim

The claimants claim is for £1,010.80 for monies due and owing together with costs and interest. The claim relates to Halifax current account reference ************

 

BOS granted the defendant and ****** an overdraft facility. The defendant fully utilised the overdraft facility which is evidenced by way of bank statements exhibited at pages 1 to 14. At page 1 is the information regarding charges applicable to the account under the heading “fees explained” it states that the arranged overdraft fee is charged at the daily rate of £1.00 up to a limit of £2,500, and a daily rate of £2,00 applies above that limit. It also states that the daily fee for an unarranged overdraft is £5.00 per day. For clarity no written agreement is available because the account is a debtor-creditor agreement enabling the debtor to overdraw on a current account. As such it is an excluded agreement pursuant to section 74(b) of the Consumer Credit Act 1974

 

The defendant and ****** were pre-notified of the charges and interest that would be debited from the account as evident from the entries in the statements in this regard indicating those amounts had been ’previously notified’ or ‘charges as notified’. The defendant and ****** were therefore aware of those charges from the statements sent to them.

 

From January 2010 it is apparent that the account incurred unarranged overdraft charges (page 12). The defendant and ***** failed to bring the account within the pre-arranged limit or within credit.

 

On 24.04.10 the BOS issued a default notice to the defendant and ****** seeking repayment of the whole debit balance totalling £729.63. A copy of the template letter sent is at pages 15 to 16. The default notice screen entry is at page 17.

 

The last transaction recorded on the account is credit in the sum of £35.10 on 25.2.2011 leaving a balance of a debit balance of £979.53 (page 12) (“the debt”)

 

Assignment of the debt

On 18.11.14 BOS assigned the debt to the claimant. On 03.12.14 the claimant on behalf of BOS sent a notice of assignment and an introductory letter to the defendants address at ********* It should be noted that it remains as the defendant’s current address for service. Copies of the notice and letter are produced at pages 18 to 20. They have not been returned as undelivered.

 

On 4.9.14 a notice of assignment was sent to ****** also at the above address. A copy of the notice and introductory letter is attached at pages 21 to 23. A copy of the claimants letter to ****** confirming its intention to add her to these proceedings and enclosing all the relevant information including the claim form and particulars of claim details it at pages 24 to 25. It should be noted that the claimants application hearing to add ****** to these proceedings has been listed for 22.10.14. The claimant has filed this statement to comply with the court order dated 16.9.14 which erroneously includes two hearing dates. The claimant’s email of 22.9.14 and a copy of that order is at pages 26 to 29. Despite my best efforts I have not been able to get through to the court by telephone to confirm the correct date of the hearing. This witness statement has been filed in the event the small claims hearing is listed 30.10.14

 

The claimant attempted to recover the debt utilising telephone calls and letters but it did not receive the money due and owing.

 

Defendant’s defence

 

The defendant maintains that the overdraft amounts to ‘penalties/charges’. It is plainly evident that the account was nearly always overdrawn from January 2006 and the higher fees for the unarranged element of the account applied from January 2010. Before January 2010 the defendant and ****** used the overdraft facility and paid into the account regularly. Charges/interest applied and credits were paid into the account thereby indicating that the defendant and ****** accepted those charges.

 

The statements clearly demonstrate that the defendant and ****** made full use of the overdraft facility by using it to pay for good and services on a regular basis. Further the defendant was notified of the charges and rate of interest for the relevant period within the statements. The claimant’s position is that those charges were properly notified and therefore not unfair.

 

The claim

 

The particulars of claim contains a concise statement of the nature of the claim detailing that it arises from an overdraft facility in connection with a Halifax/bos account; that it was assigned to the claimant; and a notice of assignment was sent to the defendant and to ******

 

The particulars of claim also details the amount of the original debt and the fact that statutory interest is charged on the debt at a rate of 8% per annum and it also informs the defendant of the daily interest rate.

 

Before issuing this claim the claimant attempted to contact the defendant numerous telephone calls and letters. The claimant also attempted to contact ****** and is currently awaiting on the outcome of its application to add her as party to these proceedings. The defendant and ****** are therefore aware of the claim details.

 

The claimant seeks payment of the arrears of this overdraft account which is payable on demand.

 

Conclusion

The claimant seeks judgment for the amount claimed together with interest as pleaded (or at the rate the court considers appropriate) together with fixed costs as follows:-

 

Court fee £65

Solicitor fixed costs £80

Hearing fee £115

[superstarjan]

Just getting organised. So we have do a joint witness statement in response to the above ws, along with two separate witness statements?

Edited December 19, 2014 by superstarjan
didnt make sense

[superstarjan]

This is the first draft of what I have down in way of our witness statement. Please can you check over it andyorch and give me some advice?

 

1. I, ****** make this statement in response to the Witness Statement of ******, dated ******* and submitted on behalf of the Claimant, 1st credit Finance Limited. The matters referred to in this statement are within my own knowledge, except where I have indicated otherwise. I am a litigant in person.

 

2. The witness statement was received on ******, therefore ****** did not have permission by the court to add ****** onto the claim, as the Hearing to add***** was set for 22.10.2014 and the date of the Witness Statement is 15.10.2014

 

3. No Default Notice has ever been received in relation to this account. The one referred to in the witness statement of ****** is not for this account. The screen shot provided is irrelevant, as it was clearly never actually actioned. Therefore, there is no original Default Notice in the exhibits as is ordered at number 8 on the Notice of Allocation to the small claims Track (Hearing).

 

 

4. A Subject access request was sent to HBOS and to 1st Credit Finance on 01.05.2014. See exhibit 1 & 2. This request was not complied with in accordance with the Data Protection Act 1998. HBOS and 1st Credit are therefore in breach and at no time have they made an attempt to rectify this. A CPR 31.14 request was sent to 1st Credit on 28.04.2014, to date, no response has been received. See exhibit 3

 

5. Upon reading the statements of account, it is clear to see that there are large amounts of disproportionate penalty charges applied. On numerous occasions, a penalty charge took the balance over the limit, which then resulted in another penalty charge being added. The account was over the overdraft limit on 23 occasions, each one as a result of either a penalty charge or interest, never through spending. See exhibit 4. In the four years from January 2006 to January 2010, the most I was ever overdrawn by was £116.00, which was as a result of £117.00 of charges being added to the account on 19.09.2006 and 22.09.2006. The charges in total on this account amount to £996.00. The Court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contract Regulations 1999. The Office of Fair Trading v Abbey National PLC and others (2009). Such charges are unfair in their entirety.

 

6. I contacted the bank in January 2010 to ask them to close the account and allow me to pay the balance in installments. At the time, I was under incredible financial strain. As I was self-employed, my business was suffering immensely in the financial crisis which had been started by the banks and was no fault of my own. I was not earning enough money to cover my outgoings and also pay these extortionate bank charges. There were some weeks where I earned no money whatsoever. The bank refused to close this account until February 2011 during which time, a further £610.00 had been added onto the account as penalty charges. The fact that I had been notified of any charges, as per number 5 of ****** witness statement, didn’t mean that I could afford to pay them or materialise the money. With regard to number 6 of ****** Witness Statement, had the bank closed the account when I informed them that I would be unable to afford £5.00 a day, the subsequent unarranged overdraft fees of £610.00 would not have been added. I can only conclude that the bank saw this as an easy way to apply charges and make money out of my misery.

 

7. At the time, I had a young family, with a special needs daughter. I had two credit cards, which I was using to juggle money for essentials. Between the two credit cards and this bank account, over many years, I was being charged on average £100.00 a month on penalty charges, which undoubtedly made my situation much more stressful. I was stuck in a cycle which I couldn’t break out of and it was snowballing. On 22.04.08 my mother took out a loan for £3,500, which can be seen on the accounts as a credit. This was to help with my dire financial situation and to stop these unfair and constant bank charges. I subsequently cleared off the credit cards and paid her back whenever I was able to. It was around this time that the credit crunch reached a peak and customers were few and far between as everybody was under financial strain.

 

8. As per number 8 of ****** Witness Statement, the debit of £35.10 is from a very old online affiliate account, I had no idea that this payment was going to be made and therefore I could not advise the company that this was now a disputed bank account.

 

 

9. During mediation and by correspondence with the claimant, I was willing to open up negotiations into settling this matter without the need for Court action. The claimant was not willing to negotiate a settlement figure and refused my first offer and proceeded with Court action. I always felt that Court action was unnecessary and was disappointed with the stance 1st credit adopted in refusing to negotiate.

 

10. As per number 12 of ****** witness statement, the charges were never accepted. These charges are seen as unfair by the court and are fully recoverable. Depending on the outcome of this case, it will be necessary to re-claim these charges with interest. Which would take the amount to a similar one that the defendant is claiming in this case. Which in my opinion renders this whole claim farcical.

 

11. With regard to number 16 of ******Witness Statement, 1st Credit do not have a valid telephone number for myself or ******. Therefore all contact has been via letters.

Summary - not done summary yet

[AndyOrch]

You dont do a joint Witness Statement Jan ...just one each.

 

Here is one I recently drafted for another thread on a current account....give you the idea.

 

[ATTACH=CONFIG]54982[/ATTACH]

 

Andy

[superstarjan]

Brill, I will work through that and then post up what I've come up with

[superstarjan]

So if we do the same witness statement, do I just change 'I' to 'he' on all the points my partner has raised and do a separate print out with each of our names at the top, or do I put both our names on the top and then there is just one joint ws?

 

Reason for my confusion is that I wasn't involved in this bank account at all, simply added onto it by the judge at the last hearing, so none of it 'in reality' relates to me anyway, so saying 'we' is not the truth of what happened. help?

[superstarjan]

bump

 

I need to get the witness statements in to Court tomorrow, because I've just found out they close for christmas tomorrow at 4pm rather than christmas eve!!

[superstarjan]

This is the witness statement I have done for my partner, still not sure whether I just put my name on it too, or have to do another page

 

1. I, ***** make this statement in response to the Witness Statement of ******, dated ***** and submitted on behalf of the Claimant, 1st Credit Finance Limited. The matters referred to in this statement are within my own knowledge, except where I have indicated otherwise. I am a litigant in person.

 

2. Number 7 of ****** Witness Statement is irrelevant. No Default Notice has ever been received in relation to this account. The one referred to in the witness statement of ***** is not for this account. The screen shot provided is irrelevant, as it was clearly never actioned. Therefore, there is no original Default Notice in the exhibits as is ordered at number 8 on the Notice of Allocation to the Small Claims Track (Hearing). They are the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim.

 

 

3. A subject access request was sent to HBOS and to 1st Credit Finance on 01.05.2014. See exhibit 1 & 2. This request was not complied with in accordance with the Data Protection Act 1998. HBOS and 1st Credit are therefore in breach and at no time have they made an attempt to rectify this. A CPR 31.14 request was sent to 1st Credit on 28.04.2014, to date, no response has been received. See exhibit 3

 

4. Upon reading the statements of account, it is clear to see that there are large amounts of disproportionate penalty charges applied. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. On numerous occasions, a penalty charge took the balance over the limit, which then resulted in another penalty charge being added. The account was over the overdraft limit on 23 occasions, each one as a result of either a penalty charge or interest, never through spending. See exhibit 4. The Court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contract Regulations 1999. The Office of Fair Trading v Abbey National PLC and others (2009). Such charges are unfair in their entirety.

 

5. I contacted the bank in January 2010 to ask them to close the account and allow me to pay the balance in instalments. At the time, I was under incredible financial strain. As I was self-employed, my business was suffering immensely in the financial crisis which had been started by the banks and was no fault of my own. I was not earning enough money to cover my outgoings and also pay these extortionate bank charges. There were some weeks where I earned no money whatsoever. The bank refused to close this account until February 2011 during which time, a further £610.00 had been added onto the account as penalty charges. The fact that I had been notified of any charges, as per number 5 of ***** witness statement, didn’t mean that I could afford to pay them or materialise the money. With regard to number 6 of *****Witness Statement, had the bank closed the account when I informed them that I would be unable to afford £5.00 a day, the subsequent unarranged overdraft fees of £610.00 would not have been added. I can only conclude that the bank saw this as an easy way to apply charges and make money out of my misery. An overdraft is a service facility that can be offered or terminated at any time by the bank who have full control to withdraw the facility if not happy with the way it is conducted or serviced.

 

6. At the time, I had a young family, with a special needs daughter. I had two credit cards, which I was using to juggle money for essentials. Between the two credit cards and this bank account, over many years, I was being charged on average £100.00 a month on penalty charges, which undoubtedly made my situation much more stressful. I was stuck in a cycle which I couldn’t break out of and it was snowballing. On 22.04.08 my mother took out a loan for £3,500, which can be seen on the accounts as a credit. This was to help with my dire financial situation and to stop these unfair and constant bank charges. I subsequently cleared off the credit cards and paid her back whenever I was able to. It was around this time that the credit crunch reached a peak and customers were few and far between as everybody was under financial strain.

 

7. As per number 8 of ***** Witness Statement, the debit of £35.10 is from a very old online affiliate account, I had no idea that this payment was going to be made and therefore I could not advise the company that this was now a disputed bank account.

 

 

8. During mediation and by correspondence with the claimant, I was willing to open up negotiations into settling this matter without the need for Court action. The claimant was not willing to negotiate a settlement figure and refused my first offer and proceeded with Court action. I always felt that Court action was unnecessary and was disappointed with the stance 1st credit adopted in refusing to negotiate.

 

9. As per number 12 of ***** witness statement, the charges were never accepted. These charges are seen as unfair by the court and are fully recoverable. Which in my opinion renders this whole claim farcical.

 

10. With regard to number 16 of ***** Witness Statement, 1st Credit do not have a valid telephone number for myself or *****. Therefore all contact has been via mutual letters.

Summary

 

It is therefore submitted that the claimants be ordered by the Court to disclose all evidence relied upon and should the claimant fail to that, their claim be struck out under CPR 3.4 as having no basis.

Costs

Parking £6.00 x 2 = £12.00

Loss of Earnings £90.00 x 2 = £180.00

[citizenB]

stan, there is only me around at the moment, but I have marked your S.O.S. as urgent.. I am sure others will be along later on today.

[superstarjan]

Thank you citizen B, I know it's a busy time for everybody

[citizenB]

[AndyOrch]

Two witness statements Jan both drafted with " I the defendant " and both containing a statement of truth and dated/signed.Yours should be relatively short as you was not actively involved with the account

 

Remove your costs...you don't include them within your witness statement...do a separate joint bill of costs in preparation.

 

Andy

[superstarjan]

Thank you very much Andy,!

 

Is the ws that I've done for my partner ok?