Steven4064 v Goldfish *** WON ***

[slick132]

Fred, by posting on the thread, you should now be subscribed.

 

For your info, if you want to suscribe w/o posting, go to the page top, click on the Thread Tools button and hit "Subcribe to this Thread" from the drop-down menu.

[Fred_Funk]

steven4064

 

Hi. Just wondering whether there's any update on this thread?

 

Fred_Funk

 

PS Thanks slick132, but I realised that! What I was looking for was the 'button' you hit somewhere to subscribe to a thread without having to post unnecessarily on it... any ideas?!

[steven4064]

I haven't done anything for a while but I intend to get my N1 in this week.

 

Ps - it's under 'thread tools' at the top of the thread

[steven4064]

OK guys - I filed my claim at my local court this morning. POC

IN THE XXXXHCOUNTY COURT

 

BETWEEN

 

Steven4064

Claimant

 

and

 

GOLDFISH BANK LIMITED (T/A GOLDFISH)

 

Defendant

 

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 1 May 2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxxxx ("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 breach of the Agreement by his failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment was returned. (Full particulars are set out in the attached Schedule).

 

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 plus interest levied thereon.

 

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 specified on the monthly statements of account by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £15.

 

Contract Penalties

 

9. The Charges were payable on breach of contract by the Claimant.

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

 

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

 

The Regulations

 

12. 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 exceeded the costs which the Defendant 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 Defendant 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.

 

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 correctly described as default 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 totalling some £xxxx between 14 March 2001 and 13 March 2005 and interest levied thereon of £yyyy. Particulars appear from the attached Schedule.

 

18. On 11 August 2007 the Claimant demanded repayment of the sums wrongly applied.

 

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

Limitation

20. The Claimant is aware that some of the Charges reclaimed relate to activity on the Account more than 6 years ago and therefore might be thought to fall within the scope of

s5 of the Limitations Act 1980. However, the Claimant at the time mistakenly believed the Defendant to be acting lawfully in applying the Charges, and only recently became aware that the Charges were unlawful. Further, the Defendant has maintained that the Charges were lawful despite evidence to the contrary and has sought to conceal their true nature.

21. The Claimant therefore contends that the limitation period is postponed pursuant to s32(1)(b) and © of the Limitations Act 1980:

32 Postponement of limitation period in case of fraud, concealment or mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

 

Compound Interest

22. The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 7 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

 

23. Therefore for complete restitution to occur the Claimant seeks an award of compound interest at the accounts purchase interest rate of 17.9% per annum. The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.

And the Claimant claims:

 

(1) Payment of the said sum of £xxxx and interest of £yyyy applied by the Defendant thereon.

(2) Compound interest at an annual rate of 17.9% from the date of payment of the Charge to 29 February 2008 in the sum of £zzzz, and at the daily rate of 0.0451% until judgment or sooner payment.

 

(3) In the alternative that the court is not minded to award compound interest, Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £zzzz, and at the daily rate of 0.022% until judgment or sooner payment.

 

(4) Court costs

I believe that the facts stated in these particulars are true.

 

Dated this 29th Day of February 2008

Signed

 

 

From the Terms and conditions currently enforce.

 

4.5 You must stay within the Credit Limit and make sure that the Cash Advance Balance does not go over the Cash Credit Limit. If you do go over the Credit Limit we may charge an over limit fee to compensate us for the added costs of monitoring your Account and creditworthiness, even if we authorised the Transaction which made you go over the Credit Limit. When we decide whether to authorise a Transaction, we may take account of any Transactions which have already been made or authorised and any other amounts payable under this Agreement, even if they have not yet been added to the Account. You can tell us if you want a lower Credit Limit or if you do not want your Credit Limit to be increased. We may require a minimum Credit Limit

 

10.1 To compensate us for our additional costs if you break this Agreement, we will charge:

§a late fee of £12 each month you do not pay the minimum payment by the Payment Date;

§a returned cheque fee of £12 each time a cheque, direct debit or other item in respect of payment of sums due to us under this Agreement is returned unpaid by the relevant financial institution or an Account Cheque is returned unpaid by us;

§an over limit fee of £12 each month that the Account Balance is over the Credit Limit; and

§the amount of any other losses and reasonable costs which we incur as a result of your breach of this Agreement. These will include (but not be limited to) costs of tracing you, notifying you of the breach, communicating with you about the breach, and enforcing payment of any amount due under this Agreement.

Brief POC

Repayment of charges unlawfully applied to the Claimant’s account by the Defendant for purported breaches of a contract plus interest levied thereon in contravention of the common law and the UTCCR1999 plus payment of interest in restitution of the Defendant’s unjust enrichment.

The Claimant claims:

(1) Repayment of charges totalling £xxx and interest of £xxx applied by the Defendant thereon.

(2) Compound interest of £xxx and at the daily rate of 0.0451% until judgment or sooner payment.

(3) In the alternative that the court is not minded to award compound interest, interest of £xxx under section 69 of the County Courts Act 1984 and at the daily rate of 0.022% until judgment or sooner payment.

(4) Court costs

Edited July 2, 2008 by steven4064

[roscodog18]

you are well on top of this..........I got a default judgement against them ( Morgan Stanley) because they simply did not bother to defend.

 

roscodog

[steven4064]

We shall see - I think they may play a bit harder as I am claiming 18.9% compound interest as restsitution.

[roscodog18]

I took them for contractual interest at 19% early in 2007

 

Roscodog

[steven4064]

A bit disappointing really - Goldfish have not replied by the due date (17 March). I'll give them a few days and then request judgement.

[patrickq1]

hi steve i ended up with a nil balance all through the ICO but saying that they have entered two defaults so i am more than angry they cannot even be bothered to write a reply to why have they defaulted this account ? so i have put it back to the ICO the reason for this is i was refused a loan from my own building society of 28 years because i wanted to consolidate a loan and through my B society i would be paying 40 pounds a month better of,but because of MS/Goldfish i was refused,gggrrr i aint finished with them yet

patrickq1

[steven4064]

Goldfish have acknowledged - fashionably late, of course. THey intend to defend - yeh, right

[woodwa5]

Steven,

let me know how this goes. I am at the early stages with goldfish but they have already sufficientlt p****d me off to motivate me into doing the same as you,

 

Woodwa5;)

[woodwa5]

secondly, i don't suppose you could send me the spreadsheet you've used for your schedule?

[steven4064]

I used my own spreadsheet which is available here or you can use Mindzai's.

[woodwa5]

You're a diamond!!!!

[steven4064]

Received a letter this morning from Goldfish offering the full amount - charges (some over 6 years old), interest and contractual interest and court costs. The only thing is, they want to credit my account which will be hard since I closed it 3 years ago!

[patrickq1]

tell them if you want they can post you a bank draft payable in your name only

patrickq1

[steven4064]

Payment received by bank transfer - covers unlawful charges and interest levied thereon, contractual interest in restitution at 18.9% and court costs.

[tomterm8]

Congratulations, Steve.

[patrickq1]

well done steve .....

patrickq1

[InformedSearcher]

I'll go with that - well done and having found 1st hand Goldfleece/Morgan Swindley are a nightmare (and now owned by Barclays PLC from 1st April 2008) I can only say congratulations!

By the way 'new idea' - as they knew when my overdue payment was getting paid they still called me daily (or more). I now call them on their 0800 number (0800 01 21 706) daily just to verify my payment was received and to verify my next payment! They are getting to know me now! LOL

Michael

[revolting peasant]

I'll read the rest of the thread later but it says ***won*** by one of my most consistant advisors.

 

Well done Steven:D

[noomill060]

I did well out of Goldfleece/moron Stanley last year.

 

Got £595 in charges, £600 in interest and a further £600 county court interest (claimed at the contractual rate!)

 

The numpties didnt bother responding and I won by default.

[woodwa5]

well done steve, great thread,

 

Woodwa5:D

[InformedSearcher]

I did well out of Goldfleece/moron Stanley last year.

 

Got £595 in charges, £600 in interest and a further £600 county court interest (claimed at the contractual rate!)

 

The numpties didnt bother responding and I won by default.

 

 

Heck yet again a compliment to you too! They can be 'tedious' people to communicate with at the best of times. 'Customer Service department' to them means, 'Tell them it's in the Terms and Conditions and we do NOT negotiate or discuss it further'.

I'll look forward to the uphill struggle of winning something from them too. Great work to you all and a good moment to thank everyone who in this thread (and others) have also privately inspired me personally.

Michael

[Hadituptohere]

Well done steven and really informative, without hijacking the post I have a cc that goldfish have handed to cabot and defaulted me on with over 500.00 in charges within the six years, do you think your approach would help me in my battle with goldfish and cabot

 

Hadituptohere:confused: