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maud26

Please help!! Defence recieved!!

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Hi all,

I have just recieved a defence from Barclays (Woolwich) and don't know what to do next. I have also recieved an Allocation Questionnaire which i need to fill in and return to my local court. I dont understand any of their defence!! Do you think i will have to go to Court?

Thanks

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1 Dont panic

2 Take a deep breath

3 Still dont panic

4 breath out slowly

 

1st - It will almost certainly not get to court anyway

2nd Someone better than me will be along soon anyhow to help

3rd If you post their defence on the message boadr people will be able to advise

4th remember a) Most of the defence is meaningless - ITS MEANT TO FRIGHTEN YOU DONT LET IT

b) ANY "Meaningful" defence would almost certainly have been tried elsewheere - there are thousands of cases the bank always backs out

c) Any non meaningful defence WILL fail

 

So remember - dont panic - nice cuppa tea sit down and start typing and reading

 

GL


http://www.consumeractiongroup.co.uk/forum/mortgage-companies/53089-fnc-ge-money-erc.html

21/12/2006 SAR

Next Step 31/1/2007 - Prelim / S.A.R Enforcement

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/55694-fnc-c-g-erc.html

21/12/2006 SAR

13/1/2007 - Prelim

Next Step 27/1/2007 LBA

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/55692-fnc-lloyds-tsb.html

21/12/2006 SAR

Next Step 31/1/2007 -Prelim / SAR enforcement

http://www.consumeractiongroup.co.uk/forum/other-institutions/55784-fnc-better-half-nationwide.html

20/12/2006 Prelim with Schedule and SI £640

5/1/2007 LBA with revised schedule CCR £867

Next Step 20/1/2007 CLAIM

PC World - Refund Faulty goods Preliminary Letter 13/01/2007 - Consumer rights are getting addictive

 

Don't get angry get even:D

 

 

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Hi

Thanks for the reply! Its nice to be reassured :-)

Here is the defence:

1. The particulars of claim does not provide details of the precise charges alleged to be unlawful or the date therof. To the extent it is alleged that the Claimant incurred bank charges on his/her account for unauthorised borrowings (whether unpaid fees for returned cheques, 'Paid referral fees' or any other such fees), the defendant puts the claimant to strict proof of each charge and date therof.

2. 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 account is overdrawn withou an overdraft limit or where the claimant exceeds his/her authorised overdraft limit).

3. The defendant is entitled to charge the claimant for unauthrised borrowings by reason of its standard terms and conditions. The claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised):

a. The Defendants right to charge and 'Paid referral fee' where the defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25.)

b. The Defendants right to charge an administrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30).

c. The Defendants entitlement, if the claimantbecomes overdrawn without an overdraft limit, to charge interest at the unathorised borrowing rate on the excessbalance.

d. If and to the extent it is the claimants case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits failure to arrange an authorised overdraft 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. The charges constitute payments the claimant agreed to make by reason of the terms and conditions of his/her account and were consideration for the defendant advancing credit to the 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.

5. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relavant 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 1999 (particularly but without limitation to , paragraph 1 (e) of schedule 2), or are in breach of the unfair (contracts) terms act 1977 (or any other provision), or are unreasonable within the meaning of s.15 of the supply of goods and services act 1982 (or indeed any other provision).

6. It is further denied that any such charges unduly enrich the defendant.

7. Therefore it is denied that the charges were unlawfully debited from the account.

8. If an to the extent the claimant incurred the charges on his/her account, this was caused by the claimant having gone into overdraft without having agreed with the defendant an authorised overdraft facility or to increase the overdraft facility and/or his/her failure to make paymemts to bring the balance of the account into credit.

9. 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 enforceability of the said charges.

10. The defendant denies that it is liable to theclaimant for the sums claimed and interest as pleaded by the claimant or at all. In the alternative, which is denied , if the said charges amount to sumes payable on breach of contract, it is averred that the charges asserted by claimant to have been applied to the account prior to 28 November 2000 would not be recoverable for reason of exhasution of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

11. In the alternative, and without prejudice to paragraph 7 above, if (which is denied) the said charges and interest or any part therof are unlawful or unenforceable as alleged by the claimant or at all, the defendant has nonetheless suffered loss and damage as a consequence of theclaimants 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 at paragraphs2, to 4 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not neccessarily be limited to the value of the said charges, and the defendant seeks to set off such sums against any liabilty owed hereunder to the claimant. Barclays bank Plc.

 

 

Any ides would be much appreciated!

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Standard, although slightly amended, defence. Nothing to worry about

 

See here for AQ guide:

Allocation Questionnaires - A guide to completion

 

And here for proposed Directions Order to include in Section G.

New strategy for Allocation Questionaires

 

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Hi maud you have exactly the same defrnce that I have, will be keeping an eye on your thread as we are at exactly the same stage.


*Won* Woolwich £5300

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Hi Again

I have filled out my Allocation questionnaire, and was about to enclose another schedule of charges when i realised i have counted one charge twice!! What should i do now? All my figures will be out!

Thanks

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Hi Guys

Me again! Do i actually need to submit a copy of the schedule of charges to my local court at this point?

Thanks

Diane

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Dont panic just submit a new sheet with your AQ. your maths does not need to be 100% what you are relying on are things like Sale of Goods Act, UTCCR, UCTA. all statute legislation.

 

AL:)


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

CAPITAL ONE * SETTLED*31st Oct 06

HBOS *SETTLED* 8th Oct 06

WOOLWICH *SETTLED*12thJan2007

Monument (Barclays) *SETTLED*10thMar2007

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