SabreSheep Vs Natwest + Moorcroft / ** Satisfactory Conclusion **

[fletch70]

Hi Sabre

Are your initials XXX? I have reported your attachment sorry .

 

I can not put my finger on it but I think that would be UE as it just seems like an application to me and I can not see the terms and conditions from inception TBH . It is of course possible they may have been in the booklet but where are the now?

Edited May 24, 2014 by stu007
Removing Initials

[dx100uk]

please keep to one thread merged and attachments redacted.

 

dx

[SabreSheep]

HI sorry.

Had this as a seperate thread as it was a discussion on the CCA and not the charge reclaiming that this thread is mainly about. But no worries if you want it all in one im good with that

 

OOh I thought I had redacted everything. Bugger, will review

[dx100uk]

all done for you already inc redactions - no worries

[SabreSheep]

thanks dx

[dx100uk]

ADI where?

 

dx

[dx100uk]

stu007 has done it

 

dx

 

thread tidied

[BRIGADIER2JCS]

Having seen and signed such a NatWest postal app this one appears to be OK.

[fletch70]

From what I see it fails to fulfil S78

My question would be, where are the terms and conditions from inception?

 

It may be that if push comes to shove a court would find it enforceable but they need to provide more details first.

[SabreSheep]

Here is the response form NW to my Prelim

 

LBA sent 17/05/14

[citizenB]

As their charges are applied whether you are 1 day or 1 month late or £1.00 or £100 over the limit then they are disproportionate and dont reflect the costs they claim.

[SabreSheep]

Thank you for that. Might have to add that to poc.

 

Been to court today and collected a stack of N1s and ex160a s

[SabreSheep]

Ok as expected received this today

 

Time to finish the POC I guess.

[SabreSheep]

I Aim to get this ready for Monday. I would appreciate all advice please. Questions at the bottom.

 

-------------------------------------

 

New POC Natwest (N1)

Claim No [ ]

 

IN THE [xxxxx] county court

 

 

 

BETWEEN

 

[Mr Flibble (Not real name for forum purposes)]

Claimant

 

and

 

 

-National Westminister Bank PLC

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 26/08/2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no XXXX-XXXX-XXXX-XXXX ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The 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. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

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

 

 

Summary

 

5. 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. (Full particulars are set out in schedule 2).

 

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

a) A penalty payable on 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.

 

 

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

 

The Charges

 

 

8. 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 2.25% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges applied are referred to in schedule one

Penalty

 

9. 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.

 

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

 

The Regulations

 

 

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

 

13. 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.

 

14. 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.

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

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

(3) The Charges were fixed fees that were incurred by the Claimant that did not vary in any relation to the amount overdrawn and therefore are disproportionate and fail to reflect the true costs the defendant claims.

(4) The Charges were fixed fees that were incurred by the claimant that did not vary in any way in relation to the time the claimant breached the agreement and therefore are disproportionate and fail to reflect the true costs the defendant claims.

(5)The 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.

(6) 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.

(7) As the Bank 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.

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

(9) 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.

 

15. 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 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 Charges are described as administration charges by the Defendant in information provided to new customers at the time.

 

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

 

17. The Defendant wrongly applied Charges to the Account totaling some £XXX.XX between 15/04/2004 and 12/10/2012 Particulars appear from Schedule 2.

 

18. 12/05/14 the Claimant demanded repayment of the sums wrongly applied.

 

19. 19/05/14 the Claimant made a final demand for repayment of the sums wrongly applied.

 

20. The Defendant has not repaid them or any of them.

 

And the Claimant claims;

 

 

(1) A declaration that the sums totaling £936.00 have wrongly been applied to the Account. Some of these charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx and interest in restitution of xxxx as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.99% per annum on the amount claimed (daily rate of £3.62) until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

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

 

 

-------------------------------------------------------

 

 

Few questions.

 

 

1 Can I add anything to the POC asking the claimant to break down their costs?

2 The interest rate bit. Is that the 8% that normally goes there, or the daily rate of restitution interest of 0.07189%?

3 Originally in 15© this POC has referred to charges for new customers being named as default charges. On the CCA that I got out of NW listed earlier in this thread has them labelled as admin charges. I have changed the point above to match. Should I just delete this point all together or leave it as it is now? (Or edit it)

4 I Added 14 (2) and (3) does this make sense? Keep edit or bin?

5 I am going to apply for fee remission, do I still claim court costs and I assume this is returned to the court if I win?

 

 

Thanks peeps

Edited May 31, 2014 by SabreSheep
Altering Bit about "admin charges" And Interest

[SabreSheep]

bumpsy

[citizenB]

Responding to S.O.S.

 

(3) The Charges are described as administration charges by the Defendant in the key information provided to new customers.

 

The above is from current terms and conditions, yes ? What were they described as on the original information provided. On the application form, I didnt see any prescribed terms at all, were default / administration charges mentioned at that time ?

 

I will flag the PoC for others on the team

[citizenB]

http://www.consumeractiongroup.co.uk/forum/content.php?561-Credit-Card-Charges.-POC-for-N1

 

I noticed you had reported the above link.. I think this is pretty much out of date.

 

Did you have a look at posts made by Shelley in the B/shark forums - I am sure she has a PoC on her thread that could be used for reference.

[SabreSheep]

Responding to S.O.S.

 

 

 

The above is from current terms and conditions, yes ? What were they described as on the original information provided. On the application form, I didnt see any prescribed terms at all, were default / administration charges mentioned at that time ?

 

I will flag the PoC for others on the team

 

 

Thank you

 

OK i got that wrong that term is from the "copy of original t+Cs" provided in responce to the CCA request. So I should change that.

 

I based this POC of Shelly's but added in the two new points regarding the charges remaining static and not dependent on how long or how much over drawn or late payment are.

[SabreSheep]

Q)s outstanding

 

1 Can I add anything to the POC asking the claimant to break down their costs?

 

4 I Added 14 (2) and (3) does this make sense? Keep edit or bin?

 

5 I am going to apply for fee remission, do I still claim court costs and I assume this is returned to the court if I win? At the moment I am leaving it blank on the N1

 

6 Schedule 1 Im guessing should be the bit of the agreement that states charges?

Edited May 31, 2014 by SabreSheep
update

[SabreSheep]

Updated POC. Any input?

 

 

 

POC Natwest (N1)

Claim No [ ]

 

IN THE xxxxxxxxxxxxxxxx

 

 

 

BETWEEN

 

[xxxxxxxxxxxx]

Claimant

 

and

 

 

-National Westminister Bank PLC

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 26/08/2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxx ("The Account").

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The 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. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

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

 

Summary

5. 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. (Full particulars are set out in schedule 2).

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

a) A penalty payable on 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.

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

 

The Charges

8. 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 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges applied are referred to in schedule one.

 

Penalty

9. 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.

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

 

The Regulations

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

13. 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.

14. 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.

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

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

(3) The Charges were fixed fees that were incurred by the Claimant that did not vary in any relation to the amount overdrawn and therefore are disproportionate and fail to reflect the true costs the defendant claims.

(4) The Charges were fixed fees that were incurred by the claimant that did not vary in any way in relation to the time the claimant breached the agreement and therefore are disproportionate and fail to reflect the true costs the defendant claims.

(5)The 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.

(6) 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.

(7) As the Bank 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.

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

(9) 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.

 

15. 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 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 Charges are currently described as administration charges by the Defendant in the key information provided to new customers.

 

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

17. The Defendant wrongly applied Charges to the Account totaling some xxx.00 between

15/04/2004 and 12/10/2012 Particulars appear from Schedule 2.

18. 12/05/14 the Claimant demanded repayment of the sums wrongly applied.

19. 19/05/14 the Claimant made a final demand for repayment of the sums wrongly applied.

20. The Defendant has not repaid them or any of them.

 

And the Claimant claims;

(1) A declaration that the sums totalling £xxx.00 have wrongly been applied to the Account. Some of these charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

(2) Payment of the said sum of £936.00 and interest in restitution of £4xxx.xx as per Sempra Metals v Inland Revenue Commissioners.

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 29.99% per annum on the amount claimed (daily rate of £3.61) until judgment or sooner payment.

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of 7 pages, are true.

Dated

 

Signed

Schedule 1

 

From NatWest, conditions in force at signing of the agreement.

 

 

-The credit limit on Your Account will be, if You have a Credit Card, £1000 or such other credit limit as We may notify to You from time to time. We may vary such credit limit from time to time and will notify You of any such variation. You may apply for and We may consider a variation in Your credit limit at any time subject to Your circumstances and Our conditions at the time of the application.

 

1. We will send a Statement of account to the Principal Cardholder each month (“statement”) except where there has been no movement in the Account during the period to which the statement relates and the balance of the Account is nil. The Principal Cardholder will pay the Bank within 25 days from the Statement date the minimum sum specified on this Statement or any greater sum. The minimum sum will be the greater of £5 or 3% of the outstanding balance.

 

General Conditions

 

4. When We tell You, You must also immediately pay US;

(i) any amount You owe over Your credit limit;

(ii) any unpaid payments from previous Statements;

(iii) any late payment charge shown on Your Statement; and

(iV) the amount of any Transaction that breaks this Agreement.

 

11. Charges

11.1 If You do not keep to any of these General Conditions, You may have to pay administration charges as detailed on the reverse of Your Statement. We will apply these charges to Your Account. We may change Our charges from time to time on notice to You.

 

 

 

 

Schedule Two

 

 

NB On actual POC the spreadsheet is printed out.

 

 

Interest charged daily : 0.07189% = 29.99%apr in restitution (£3.61 daily rate)

[SabreSheep]

Now according to my original "copy T+Cs" there is no mention on the amount the charges would be. Is this significant and how should I word that in?

[SabreSheep]

Bump

I know I know, Its the weekend

 

Also for fee remission im applying under Income critera as I am on Contribution Based JSA.

Is it possible to go to job center and get a fresh award letter printed out as the court will only accept one 1 month old :o/

[fletch70]

You can certainly get one posted to you so I can't see any reason why you can't go to the job centre. However as you are on Cont based you will also need the likes of current bank statements etc. Be prepared to justify any payments in.

[SabreSheep]

Thanks Fletch

 

I have shares certificate as well as most recent 3 months BS

Only payments in are my JSA

Housing benefit is excluded anyway and gets paid direct to landlord

[SabreSheep]

Final bump for the night> Last request for comments on my last POC. Printing it when I get up otherwise.

Was hoping someone would let me know if there were any errors before submitting.