Beetlejuice vs MBNA

[beetlejuice]

I have reminded them of their obligations and that Microfiche are a valid form of filing and therefore covered by the DPA and my SAR. But for the time being my claim will include a daily rate for pre statement period.

 

If they want to argue against that they can come up with the statements for that time. I'm sure a judge will support this line of argument.

 

 

BJ

 

 

[standingupformyself]

You have got my backing Beetie, I personally think that you are in with a good chance, I am wondering whether to re-SAR them myself........... well, I wouldn't want to get bored now would I !!!!

[beetlejuice]

Now LBA has expired, no response from MBNA. I need some advice.

 

My Claim against them is for £3.2k or so in charges and PPI plus interest on these in DI (demonstratable interest) plus estimated previous charges of £1k giving a total claim of £7.2k and a further £9.7k in CI. Giving some £16.9k in total. all going back to 2001.

 

Do I use Small claims or fast track and which amount do I use for the fees calcs?.I think it's the £7.2 figure as the court will decide whether my claim for CI is valid or 8% stat int.

 

Comments welcome, I need to find decent POC!!!! for this.

 

 

Thanks in anticipation

 

BJ

 

[beetlejuice]

Letter arrived from MBNA dated 4th Sept.

 

Offering £852 to be credited to my account but not against current arrears.!

 

I will send refusal letter stating the LBA term has expired and that a court claim will follow.

 

BJ

 

[Hopeful1]

Good grief BJ that's some claim you've got going on!! it may be worth PM-ing some of those in the know with help for your POC and questions related to court.

 

Good luck with this, it will be a win and a half

[beetlejuice]

Would a MOD or SH mind popping into this thread as hopeful says I don't want to mess up by issuing a sloppy POC. Is there a definitive POC for Credit cards????

 

 

 

BJ

 

 

[steven4064]

Hi BJ

 

I posted a PoC for credit Card claims the other day here which covers the charges and DI bits plus s69 interest. You could use it as a start to add PPI and CI. (It also has default removal which is not relevant).

 

You don't need to specify which track - the court will do that at allocation. It's most likely to be allocated to the Fast Track alothough you might be able to get it alloacted to Small Claims on the grounds that it is a simple case. Hoepfully it will never get to court anyway so the track is somewhat academic.

 

For CI you will need an argument based on unjust enrichment and add s69 as "in the alternative" - youwill find some stuff on unjust enrichmnet at teh end of this thread. I'm afraid I don't really know anything about PPI - presumambly you are going for mis-selling - have a look on the PPI forum and pinch some stuff from there.

 

Once you have a draft PoC, post it here and we can comment.

[beetlejuice]

Thanks Steve,

 

I'll put something together.

 

The PPI issue is straight forward I asked them to cancel by phone and by letter( I have asked for a copy of the CCA in my LBA) so I'm claiming it plus interest back.

Along with charges and DI + CI.

 

Once I have a decent POC for CC's I can send the four claims I currently have at this stage!!! All with Ci from beginning.

 

Thanks for popping by.

 

BJ

 

[beetlejuice]

Steve,

 

Yes I was just amending that one {POC} when I noticed no paragraph for CI.

 

I will add something and post it here. I'm in a similar place with Abbey and the bank/CC difference is doing my head in! Reading Glenn's thread against Abbey a wicked POC which I shall use for that, just need to keep re reading to make sure I understand the arguments. My Abbey claim is near 11K!!

 

Want to progress all Credit card claims to court before a test case is issued there then go back and catch up with Shabbey!!

 

Thanks again

 

BJ

[steven4064]

For CI you could put something like

8. Accordingly the Claimant claims:

...

 

d) Interest of £x corresponding to a daily rate of x% compounded (x% APR) in restitution for the Defendant's unjust enrichment and also interest at the same rate up to the date of judgement or earlier payment;

 

e) In the alternative, if the court is not minded to award interest at a daily rate of x% compounded, interest under section 69 County Courts Act 1984 at the daily rate of 0.022% (8% per year) and also interest at the same rate up to the date of judgement or earlier payment.

The real justification for the interest award will not be in the PoC but in the Statement of Evidenece if you ever get to do one. GaryH has done a superb SoE which covers this wonderfully.

[beetlejuice]

Thanks I was just struggling with that one.

 

Nearly done, do I put in the spread sheet figures for the CI amounts on the day I will file, these change so I need to add a note about that or could I just put in the principle of the argument and work it out if and when they settle or go to court? My feeling is it's better to have actual figures makes them sit up and take notice.!

 

BJ

[beetlejuice]

Steve

 

have a look at this;

 

IN THE XXXXX COUNTY COURT

 

BETWEEN

 

Beetlejuice, {CLAIMANT}

 

AND

 

Royal Bank of Scotland MINT Credit Card {DEFENDANT}

 

PARTICULARS OF CLAIM

 

1. The Claimant had an account number XXXXX OOPs!, ("the Account") with the Defendant, which was opened on or around Jan 2001.

 

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges (“the Schedule”) applied is attached to these Particulars of Claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account were punitive in nature; were not genuine pre-estimates of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and were not intended to represent or related to any alleged actual loss, but instead unduly enriched the Defendant which exercised the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of

 

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

 

ii) the common law relating to liquidated damages and penalties in contracts.

 

c) Despite the Claimant having repeatedly written and telephoned the Defendant, the Defendant continued to debit the Claimant’s account with PPI instalments. The Claimant has requested the Defendant issue a copy of the original Consumer Credit Agreement on which the Claimant agreed to pay these installments, no copy has been forthcoming. The Claimant has copies of one of the letters asking the Defendant to stop debiting these amounts from the Claimant’s account.

 

5. The defendant has, in addition, levied interest on these charges at the rate of various rates of interest, these are, where known, listed on the schedule of charges and interest on those charges.

 

6. The Claimant avers that, by this action, the Defendant has sought to enrich itself by the consequences of unlawful action, specifically, unlawful penalty charges as detailed above and applied in terrorem.

 

7. a) The Defendant concealed the nature of their charges and unauthorised interest rates and led the Claimant to mistakenly pay the unlawful charges and interest through their misrepresentations regarding the nature of the charges and interest.

 

b) The facts relevant to the Claimant’s right of action have been deliberately concealed from him by the Defendant.

 

c) The Defendant continues to conceal both the nature of their unlawful charges and interest charges, and the facts relevant to the claimant's right, as the holder of the accounts, to recover unlawful charges and interest removed from the Claimants accounts. .HELP here is this section OK?

 

8. Accordingly the Claimant claims:

 

a) the return of £x in charges and interest of £x thereon debited to the Claimant’s account and listed in the attached schedule

 

b) the return of £x in PPI installments and interest of £ thereon debited to the Claimants account as listed on the attached schedule.

{amended}

 

c) Court costs;

 

d) Interest of £x corresponding to a daily rate of x% compounded (x% APR) in restitution for the Defendant's unjust enrichment and also interest at the same rate up to the date of judgement or earlier payment;

 

e) In the alternative, if the court is not minded to award interest at a rate of x% compounded, interest under section 69 County Courts Act 1984 at the daily rate of 0.022% (8% per year) and also interest at the same rate up to the date of judgement or earlier payment.

 

 

I believe that the contents of these particulars of claim are true

 

 

BJ

 

[steven4064]

My only comments are on layout:

 

I think 4 c) should be a seperate section - it is a statement of fact, not part of what you contend. However, all the parts of 7 are part of what you contend and should be part of 4, if you decide to keep them. I am not sure about them (presumably they are there becasue you intend to use s32 of the Limitations Act in your SoE). I think I would be tempted to put them all into one (shortened) point in 4.

[beetlejuice]

So:

 

IN THE XXXXX COUNTY COURT

 

BETWEEN

 

Beetlejuice, {CLAIMANT}

 

AND

 

Royal Bank of Scotland MINT Credit Card {DEFENDANT}

 

PARTICULARS OF CLAIM

 

1. The Claimant had an account number XXXXX OOPs!, ("the Account") with the Defendant, which was opened on or around Jan 2001.

 

2. During the period in which the Account has been operating the Defendant has automatically debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges (“the Schedule”) applied is attached to these Particulars of Claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account were punitive in nature; were not genuine pre-estimates of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and were not intended to represent or related to any alleged actual loss, but instead unduly enriched the Defendant which exercised the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of

 

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

 

ii) the common law relating to liquidated damages and penalties in contracts.

 

c) The Defendant has and continues to deliberately conceal the nature of their unlawful charges and unauthorised interest rates and the facts relevant to the claimant's right, as the holder of the accounts, to recover unlawful charges and interest removed from the Claimants accounts and has led the Claimant to mistakenly pay the unlawful charges and interest through their misrepresentations regarding the nature of the charges and interest.

5. Despite the Claimant having repeatedly written and telephoned the Defendant, the Defendant continued to debit the Claimant’s account with PPI instalments. The Claimant has requested the Defendant issue a copy of the original Consumer Credit Agreement on which the Claimant agreed to pay these installments, no copy has been forthcoming. The Claimant has copies of one of the letters asking the Defendant to stop debiting these amounts from the Claimant’s account.

 

6. The defendant has, in addition, levied interest on these charges at the rate of various rates of interest, these are, where known, listed on the schedule of charges and interest on those charges.

 

7. The Claimant avers that, by this action, the Defendant has sought to enrich itself by the consequences of unlawful action, specifically, unlawful penalty charges as detailed above and applied in terrorem.

 

8. Accordingly the Claimant claims:

 

a) the return of £x in charges and interest of £x thereon debited to the Claimant’s account and listed in the attached schedule

 

b) the return of £x in PPI installments and interest of £ thereon debited to the Claimants account as listed on the attached schedule.

c) Court costs;

 

d) Interest of £x corresponding to a daily rate of x% compounded (x% APR) in restitution for the Defendant's unjust enrichment and also interest at the same rate up to the date of judgement or earlier payment;

 

e) In the alternative, if the court is not minded to award interest at a rate of x% compounded, interest under section 69 County Courts Act 1984 at the daily rate of 0.022% (8% per year) and also interest at the same rate up to the date of judgement or earlier payment.

 

f) The claimant requests the Defendant produce a copy of statements prior to 19th March 2001 going back to account opening in September 1998 so that a genuine figure for charges debited to the Claimants account can be calculated and interest on those charges, The Claimant issued the Defendant with a Subject Access request on the 25th March 2007 and has still not received the full information requested under the Section 7 of the Data Protection Act 1998. The Claimant has for the purposes of this claim estimated the amount of charges pre March 2001. If the Defendant wishes to contest these amounts then the Claimant requests the earlier statements be submitted in evidence. {Completely forgot about this bit DOH!}

 

 

I believe that the contents of these particulars of claim are true

[steven4064]

That looks good - one tiny itsy bitsy point - now 7 should say 'these actions'

[beetlejuice]

Thanks Steven,

 

Is 8 f) ok?

 

on the N1 do I put amounts claimed as a) or b)?

 

BJ

[steven4064]

Is 8 f) ok?

 

on the N1 do I put amounts claimed as a) or b)?

I think 8 f) is fine, others may want to comment.

 

On the N1 amonut put a) + b)

[beetlejuice]

Sorry,

 

a) and b) were figurative I really meant d) & e)

CI or Stat

 

 

 

BJ

[steven4064]

I don't think you put the interest in the amount claimed section at all - I didn't on my NatWest claim. The other alternative is to do what I did on my GE claim "I do not expect to recover more than £5000" or, in your case, "I expect to recover more than £15000" (see guidance leaflet on completing the N1 here)

[beetlejuice]

Thanks Steve,

 

All I now need is the Court Fee!!

 

BJ

[beetlejuice]

In light of GaryH's excellent post (must re read it) do you think 8 d) should be amended in any way?

 

BJ

 

[steven4064]

Having briefly read it again and all our discussion on this thread I don't think you need to modify 8d) as it adequately describes what you are claiming.

 

You could add a bit to 7 to describe the fact that they drived benefit from your money perhaps sumarising the bit in bold in

[33. In this case the enrichment consists, not of the payment of a sum of money as such, but of its payment prematurely. As Professor Birks pointed out, the availability of money to use is not unequivocally enriching in the same degree as the receipt of money: Unjust Enrichment, 2nd ed, p 53. But money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra of what the Revenue actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands, as Lord Walker puts it in para 180. The Revenue accepts that the money it received prematurely had a value, but it says that the restitutionary award should take the form of simple interest. I do not think that such an award would be consistent with principle. Simple interest is an artificial construct which has no relation to the way money is obtained or turned to account in the real world. It is an imperfect way of measuring the time value of what was received prematurely. Restitution requires that the entirety of the time value of the money that was paid prematurely be transferred back to Sempra by the Revenue.

from Gary's post.

 

Certainly you should keep this stuff handy for when (if) you have to do a statement of evidence.

[beetlejuice]

Steve,

 

Can I do a straight quote or does it need to be more specific?

 

7 b) Quoting from a recent Case in a claim Sempra Metals vs Inland Revenue.

 

Unjust Enrichment, 2nd ed, p 53. But money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra of what the Revenue actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands, as Lord Walker puts it in para 180. The Revenue accepts that the money it received prematurely had a value, but it says that the restitutionary award should take the form of simple interest. I do not think that such an award would be consistent with principle. Simple interest is an artificial construct which has no relation to the way money is obtained or turned to account in the real world. It is an imperfect way of measuring the time value of what was received prematurely. Restitution requires that the entirety of the time value of the money that was paid prematurely be transferred back to Sempra by the Revenue.

 

I haven't read the whole thing, can you PM a copy? Thanks

 

BJ

[thelightbrigade]

subscribing

[steven4064]

Can I do a straight quote or does it need to be more specific?

You couild, but I think a brief summary is better and leave the quote for your S of E. (just MHO)

 

 

I haven't read the whole thing, can you PM a copy?

You can find it here. Best of luck!!