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Sharp V Woolwich/Barclays


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Also posted on barclays forum

 

Hi all

Well Mr keith Jerimiah has excelled himself this time. Here is Barclays 13 point defense, hopefully we shall meet in court soon.

 

1/ the defendant is entitled to charge the claimant for unauthorised borrowings by reason of its standard terms and conditions. The charges constitute payments the claimant agreed to make by reason of the terms and conditions of her account and were consideration for the defendant advancing credit to them claimant, which the defendant was under no obligation to advance. The defendant was entitled to impose such charges and interest when the claimant incurred the overdraft. The claimant accepted the same when the account was opened.

 

Well she is a he!!!! and i never had any overdraft facilities and the so called advances were their charges taking me intio the red!

 

2/ The standard terms and conditions included (in particular but without limitation) the following terms and conditions (which are summerised)

A The defendants right to charge adminastrative costs if any cheque, standing order or direct debit cannot be paid because of lack of funds in the account £30

B the defendants right to charge administrative costs if the defendant was compelled to pay any items which caused the account to be overdrawn £30 per item

C the defendants right to charge unauthorised ovberdraft fees £3 per day

D The defendants entitlement to refuse any debit transaction or debit card transaction where there are insufficient funds in the account and to debit from the claimants account any charges interest or other monies which became payable by the claimant to the defendant in relation to the account

E The defendants entitlement if the claimant went overdrawn without an overdraft limit or exceeded his overdraft limit to charge interest at the unauthorised borrowing rate on the excess balance.

F The defendants entitlement if a cheque or other paid item to the account was rerturned unpaid to debit the account with the ammount of that item together with any interest paid by the defendant on it.

 

3/ The defendants standard terms and conditions give the claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the claimant exceeds her authorised overdraft limit)

 

4/ If and to the extent it is the claimants case that the failiure to make the necessairy payments and / or failiure to remain within authorised overdraft limits constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the claimants account constitutes a liquidated damages clause the same is denied. Paragraph 3 above is repeated.

 

5/ It is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevent or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the unfair terms in consumer contracts regulations, or are in breach of the unfair (contracts) terms act 1977. It is further denied that any such charges unduly enrich the defendant.

 

6/ Therefiore, it is denied that the charges were unlawfully debited from the account

 

7/ If and to the extent the claimant incurred charges on her account this was caused by the claimant having gone into overdraft without having agreed with the defendant to increase the overdraft faciklity/or his failiure to make payments to bring the baklance of the account back into credit or back within the authorised overdraft limit.

 

8/ It is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same. Accordingly the claimant is not entitled to a declaration by the court as to the enforcability of the said charges wheather as pleaded or at all.

 

9/ The defendant denies that it is liable to the claimant for the sums claimed and interest as pleaded by the claimant

 

10/ In the alternative and without predudice to paragraph 9 above if (which is denied) the said charges and interest or any part thereof are unlawful or unforceable as alleged by the claimant or at all, the defendant has nonetheless suffered loss and damage as a consequence of the claimants breach of contract in allowing the account to go into unauthorised overdraft. Accordingly in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessairy such loss and damage as is actually suffered which will not necessairily be limited to the vaklue of the said charges and the defendant seeks to set off such sums against any liability hereunder to the claim,ant.

 

11/ The defendant denies that it is liable to the claimant for the sums claimed and interest as pleaded by the claimant or at all. In the alternative, which is denied, if the said charges ammount to sums payable on breach of contract, it is avverred that the charges asserted by the claimant to have been applied tio the account before 28 september 2000 would not be recoverable for rweason of exaustion of time in bringing contractual claims from the date of accrual, persuant to the limitation act 1980

 

Anyone any ideas how to speak nicely to the judge?????

I opened this account in April 2001! No Cheque book No Overdraft facility!

Claim is for Aprox £4500.00

 

Think i can dusmiss most of it but need reassurance!

 

Finally mr Jerimiah doesnt know wheather in a he or she!!!!!

 

All help appreciated

 

Andy Sharp (definately a he!!!)

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HI Andy

 

Apart from the name and the amount i could say 'SNAP'

 

I think there defence is a standard print out like their charges letters.

 

I suspect your looking at April court date which is the only down side although the daily interest will come to a celebration amount. lol.;-)

 

Al.

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

CAPITAL ONE * SETTLED*31st Oct 06

HBOS *SETTLED* 8th Oct 06

WOOLWICH *SETTLED*12thJan2007

Monument (Barclays) *SETTLED*10thMar2007

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