Creation Store Card reclaim late fees

[HP Mum]

Ok C's Defence:

 

 

1. They agree they entered into a credit agreement with me

 

 

2. they twist my claim in Summary 5 - "It is acknowledged in 5 of the POC the Claimant admits that she failed to make minimum payments to the account on due dates &/or exceeded the credit limit &/or payments were returned by bank as unpaid. Thus the Claimant admits being in breach of the t&cs of the Agreement."

 

 

3. as a result of "Claimants failure to make payments on time /or stay within the credit limit of the Account, default charges were imposed against the Account in accordance with the contractual provisions of Agreement"

 

 

4. C "denies charges wrongly applied as alleged. The charges were applied in accordance with the terms of Agreement. 6 & 7 are denied and Claimant put to strict proof thereof" (In my POC 6 = default charges applied in accordance with the standard terms of Agreement - a) a penalty payable on breach of contract and thus enforceable b) an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding) & 7 = The claimant is accordingly entitled to repayment of the sums wrongly added to the account)

 

 

5. the "references in POC to Defendant being a Bank is incorrect"

 

 

6. C "denies being in breach of the Regulations as alleged &/or the charges were a penalty for breach of contract 7/or exceeded the costs which the Defendant could have expected to incur in dealing with the late payments, returned payments &/or credit limit being exceeded &/or were disproportionate".

 

 

7. C "denies 12-16 of my claim in its entirety and I am put to strict proof thereof"

(Under my POC heading The Regulations 12. 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.

13. 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 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 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 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.

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

(7) 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.

14. 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:

(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 correctly described as default charges by the Defendant in the key information provided to new customers.

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

16. The Defendant wrongly applied Charges to the Account totalling some £xx between x and x.

8. C "denies that it wrongly &/or inappropriately applied charges to the Account and asserts that in any event some of the sums claimed are statute barred, specifically those incurred before Jan 2010. The Claimant is not entitled to rely on he provisions of s.32(1) © of the Limitations Act 80, as she has produced no evidence of discovery of a mistake which would result in the delayed commencement of the limitation period. The case of KB v Leics is irrelevant."

 

 

9. C suggests that I have incorrectly added a charge - "the charge detailed in Sch.1 of POC as being incurred on xx date is incorrectly stated as £x when in fact the charges on that date was £y.

(I have a default notice statement from C which confirms my claim - the late fee of £x has been added to the Agreement.... the total amount of all default sums due under the Agreement and this notice is £x (same as my claim figure)

 

 

10. C "denies it has been enriched, unjustly or otherwise as alleged &/or that the interest in the sum of £x claimed in restitution is due to Claimant who has failed to demonstrate why Sempra Metals v IR should apply.

 

 

11. C "puts Claimant to strict proof in respect of each and every aspect of the claim"

 

12. C "denies it is liable to pay interest by way of alleged restitution or that interest should be payable under S69 of CCA 84"

 

 

13. C makes a mistake here!!! They write "Defendant denies it is liable to remove any or all adverse credit data relating to the Defendant's non-payment of her contractual payments". Obv. they meant to write Claimant!!!

 

 

 

 

SO - what am I supposed to do now?

I have no idea what my next step has to be and when to take it !!!

[AndyOrch]

See post#70

[HP Mum]

Thanks.

Just to be sure - do I simply write a letter to the court I wish to proceed?

 

 

Then moving forward - I have read about people preparing bundles for the courts. What does that mean? What should I start to prepare?

Answers to every point in their defence?

How do I assert my ability to claim back before 6y ago? Do I have lots of reading up to do now ??!!

And how do I prove relevance of Sempra?

[AndyOrch]

If you would like to proceed with your claim upon receipt of a paid, full or part defence you must notify the court by following the directions enclosed with the copy of the defendant’s

response.

 

If you have been sent a questionnaire to complete this must be returned by the date specified. Failure to do so may result in your claim being struck out. If there is a fee to pay you

may send a cheque or postal order made payable to HMCTS with the questionnaire.

 

Alternatively you may pay by card over the telephone between the hours of 9.30am – 3.30pm Monday to Friday and submit your questionnaire via email to [email protected] For

information on the fees payable you can download booklet EX50 from http://www.justice.gov.uk/forms

 

Dont jump to far ahead yet lets deal with the Allocation and any intended response to the defence.

[HP Mum]

Aaah. I see. I guess I must wait for the court to send me the Defendant's Defence. I have only received a separate Defence direct from C. And there are no directions attached with that.

[AndyOrch]

In the meantime nothing to stop your researching Sempra Metals v IR et al to sharpen your arguments.

[HP Mum]

Have now received Notice of Proposed Allocation to Small Claims from the court.

 

 

I have had a quick look at the form N180

- what would I do with the box "Small Claims Mediation Service"

- should I say yes so it paves the way for C to offer settlement?

[Bazooka Boo]

IMHO if they are offering mediation, and AFAIK, you should accept mediation, but await a second opinion first!

[HP Mum]

hiya - the Notice told me to download the N180 form.

The Notice said that it appeared to be suitable for the small claims track. But the first question on the N180, part A asks us all to consider mediation. So C has not offered it - yet....

I have to fill in the N180 and return to Salford by the week after next...

[Old Cogger]

mediation is expected as part of the procedures - yes

[HP Mum]

Received C's questionnaire.

They have NOT asked for Mediation

 

I was intending to tick Mediation on my questionnaire.

So is it then left up to the court to decide what to do?

I intend to fill in my form and post it during this week, Just waiting til I know if I may have some dates that I will not be available.

How far in advance do Courts tend to book hearings? is it many months ahead or quite close to the current date?

 

Bit stressed as have very busy life - unexpectedly - at the moment and this is way down on the scale of importance - yet, of course is important now I have set the wheels in motion...

[AndyOrch]

You still say yes....yes you will consider meditation

[HP Mum]

I have sent my Directions Questionnaire to the Court and copied Creation.

 

 

What am I supposed to do now ??? help !!

[AndyOrch]

Wait until you receive your Notice of Allocation...this will give you the further directions.

[HP Mum]

I have received nothing in the post about a hearing yet. or mediation.

 

Bit worried as I am away for work over the next month.

 

Very annoyed too as I just discovered that C have given me a default on my cra. I started writing complaining last summer and they never replied to my letters in which I advise them they owe me £s and in the meantime they default me - which has made my score plummet

[Bazooka Boo]

Have you rang the court to find out what is happening to this?

 

I would also inform the court that you are away from your address for the next four/five weeks, and as such you won't be able to respond to any correspondence served at your address.

[HP Mum]

Hi

I did originally state on the Directions that I would be unavailable between x and y dates.

 

The latest correspondence I received from ccmcc was a few weeks ago - advising the claim has been transferred to my local court for allocation; the file is to be referred to a procedural judge who will allocate the claim to track and give case management directions; details of judges decision to be sent in a notice of allocation.

 

What does this mean?

 

Also - very importantly - I have not sent any extra £s to cover the cost of a hearing. I was panicking that I should have sent a cheque (I didn't) according to the value of the claim to cover the hearing costs - but just read that you only pay for the hearing when you get the allocation. Is that correct?

 

have attached C's defence (edited out pers info)

 

Will be able to research my case whilst I am away over the next weeks, in the evenings I hope.

Any tips welcome !

Creation Defence edit.PDF

[AndyOrch]

Hi

I did originally state on the Directions that I would be unavailable between x and y dates.

 

 

The latest correspondence I received from ccmcc was a few weeks ago - advising the claim has been transferred to my local court for allocation; the file is to be referred to a procedural judge who will allocate the claim to track and give case management directions; details of judges decision to be sent in a notice of allocation.

 

 

What does this mean?

 

You will recieve whats called a Notice of Allocation shortly...this details the timetable and directions on how the claim will proceed

 

 

Also - very importantly - I have not sent any extra £s to cover the cost of a hearing. I was panicking that I should have sent a cheque (I didn't) according to the value of the claim to cover the hearing costs - but just read that you only pay for the hearing when you get the allocation. Is that correct?

Yes

 

Andy

[HP Mum]

I have had a letter from the courts

- simply to say it is with my local court and waiting for the judge to read, deliberate - & I guess allocate??.

No date or timetable yet.

Quite happy it has been delayed as I have been too busy to do any research.

 

This is the first time I have gone to court as a Claimant. I am nervous.

 

Also - in the meantime CFS have defaulted me.

I complained to the CRA.

They replied saying that CFS said they had resolved the dispute late last year!!

 

 

When I replied that CFS had never even corresponded with me, let alone resolved,

and that I had thus Served a Claim against CFS end last year

and was waiting on the legal process -the CRA replied that the info rests with the lender (CFS)

and they can't argue against what info the bank provides.

 

How can this be?

I wrote again to the CRA and reiterated that I had made a claim against CFS a

nd the dispute was not resolved.

No reply yet.

 

 

However, I need to improve my credit score immediately.

 

Is it worth paying off the debt (£500) to improve my credit score NOW?

 

And to still go through the court with my claim for wrongly issued penalty charges and CI?

With the additional complaint that they defaulted me rather than correspond

which has affected my financial status with the CRA ?

 

Advice on this much appreciated....

[Bazooka Boo]

Paying off this debt, that you don't owe, will NOT improve your credit score one iota!

 

The default marker is there for 6 years, paid or not, the ONLY way you can get it removed is by complaining to the ICO, and/or taking legal action against CFS for defamation.

 

If you can prove that you have been adversely affected, financially, through the incorrect data being added to your file, then the cost of compo goes up.

 

Demand that the CRA place a 'notice of correction' against this default marker on YOUR file.

 

But don't forget that the CRA's are paid handsomely by the DCA's to add markers to peoples CRF, so in essence, you're just a commodity too them, they claim that your credit file is yours, when in actual fact it's anything but, it's just a way to make another profit out of people..

[HP Mum]

Thanks for that.

 

The way I saw it is that I did owe CFS some £s on my card

BUT they owe me penalty charges and CI which amounts to a lot more.

 

 

So I was thinking that if I paid what I owed but still kept my claim going to reclaim the amount I was owed

then at least the account on the CRA would read settled

- which may improve my credit rating?

 

 

Then in my claim is successful I can also claim for defamation and get the default removed.

It is only cos I need a better rating for someone.

 

In the meantime I did get another message from the CRA today -

Unfortunately as we have already queried this with the lender, I am unable to do so again.

If you would like to explain the circumstances of this account you can add a Notice of Correction to your report.

If a Notice of Correction is added, applications for credit will need to be manually looked at, so your statement can be read. This means you won't get credit instantly on-line, by telephone or in a store

Not sure what that means? Does it mean that if I apply for a loan/mortgage/card etc they can read more than normal?

[dx100uk]

if the debt is defaulted

paying it

will not improve your rating

 

 

go for the reclaim court claim

and demand the default should never had been registered if you can prove the reclaimable fees to the date of the default was more ..thus your should have been in credit at the time the default was registered.

 

 

dx

[slick132]

Hi Mum,

 

This was discussed earlier in this thread.

 

Negotiate a settlement with the bank's legal reps that all CRA data will be removed.

This is the only chance you'll have to get the CRA removed more quickly.

 

Otherwise, whether you pay the alleged debt or not, the adverse CRA will be showing for 6 years from when it was first shown.

 

[HP Mum]

A court hearing has been scheduled - but it is months ahead in mid July

 

 

Are they likely to correspond in advance to try and avoid the court hearing?

Should I start correspondence asking them to re-assess?

Or should I just start preparing the court bundle to fight my case and tell them?

[slick132]

Hi Mum,

 

Please read other *WON* threads in the Barclays successes forum. They will show how others have negotiated.

 

You can initiate contact with a view to reaching a settlement but you don't want to appear too "desperate" to settle quickly or they'll sense weakness and perhaps delay negotiations to unsettle you.

 

You can set the ball rolling by asking the bank's legal reps, Without Prejudice, if they are willing to make an offer close to your claim to avoid the need for further use of the courts' resources.

 

At this stage, I suggest you concentrate on research and on amassing the evidence bundle you'll need.