Monument (Barclays) Defence received

[taurus66]

Hi,

Just received the defence from Barclays T/A Monument.Up to now my friend has done most of the work for me (my pc died) But up and running again now and joined the site today.

Bit scary now I've got to do it myself and now I have Barclays defence for Monument,it's long - 16 points but they've missed out number 5 so guess it's only 15.Will try to post it up later.

[dar£n]

main point is #1. just post that one up here asap.

[taurus66]

BARCLAYS BANK PLC T/A MONUMENT

DEFENCE

1. Monument is a trading division of Barclays Bank PLC and not a legal entity in its own right.

2. To the extent it is alleged that the Claimant incurred charges on the Claimant’s account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the “Charges”), the Defendant puts the Claimant to strict proof of each charge and the date thereof.

3. The Defendant’s standard terms and conditions (“Terms”), which the Claimant accepted upon opening the account, entitle the Defendant to debit the Charges from customer accounts upon certain events (including, but not limited to, exceeding account credit limits and I or unauthorised borrowing and / or failing to make sufficient monthly payments to reduce the account balance by the required date).

4. It is the responsibility of the account holder to properly monitor the account so as to ensure compliance, for example, with the obligation to make payments by the required date.

6. The Terms gave the Claimant a fair and transparent view of the obligations and entitlements set out above, including the basis on which the Defendant would be entitled to debit the Charges from the Claimant’s account.

7. If, and to the extent it is the Claimant’s case that the failure to make monthly payments and / or failure to remain within the agreed credit limit, constituted a breach of the Terms, and that the contractual entitlement to debit the Charges from the Claimant’s account constitutes a liquidated damages clause, the same is denied. The Charges applied to the Claimant’s account were payments that the Claimant agreed to make upon the events described above by reason of the Terms. Accordingly, it is denied that the Charges or any such charges constitute unfair and / or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses applies or is relevant to the Charges, as alleged by the Claimant, or at all, and / or that the charges are otherwise unenforceable.

8. 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 8 and paragraph 1(e) of Schedule 2 or regulation 5(1)), or are in breach of s.4 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).

9. Further or alternatively, without prejudice to the matters pleaded above, if the Claimant’s failure to make sufficient account payments by the required date and /or to remain within pre-agreed credit limits constituted a breach of the Terms, the Defendant avers that the Charges were nonetheless valid and enforceable.

10. It is further denied that the Charges were unlawfully debited from the Claimant’s account. 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. The Defendant denies that it is liable to the Claimant for the sums claimed and interest, as pleaded or at all.

11. Accordingly, it is averred that the Charges are legally enforceable and the Defendant was entitled to debit the Charge from the Claimant’s account.

12. The claim for overdraft interest is denied. In particular it is denied that the said interest was charged on overdrafts caused or caused solely by disproportionate penalty charges, or that such overdrafts were caused by the said charges, and / or that the Claimant is entitled to interest as pleaded or at all. The overdraft and / or subsequent charges were caused by the matters set out below.

13. The claim for contractual interest and compound interest is denied. In particular it is denied that the Claimant is entitled to interest on a principle of mutuality and reciprocity as pleaded or at all. The Terms and Conditions set out the basis on which the account was to operate and evidenced the contract between Claimant and Defendant. The Terms and Conditions provided for a rate of interest to be applied to the Claimant’s account but contained no such entitlement for the Claimant to recover the same from the Defendant. Further or alternatively if, which is denied, the Claimant is entitled to damages and interest thereon, there is no basis in contract or common law for the application of this rate of interest to sums owed to the Claimant and that mutuality and reciprocity are not a known or acceptable basis for the calculation of interest. The Defendant avers that whilst the Court has discretion as to the level of any interest award, there are no grounds for the Court to depart from the principle that interest on any judgment, if awarded, should be at the current judgment rate.

14. It is further denied that the charges are “calculated to generate material profits” and that any such charges unduly enrich the Defendant.

15. It is denied that the charges were extravagant.

16. In the alternative, and without prejudice to matters stated above, if (which is denied) the said Charges or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the Charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a consequence of such breach of contract by failing to make monthly payments and / or failing to remain within the agreed credit limit. 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 necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.

STATEMENT OF TRUTH I believe that the facts stated above are true. I am duly authorised by Barclays Bank PLC to sign this statement on its behalf.

ROSEM ARY TREVES BROWN

Solicitor

Barclays Bank PLC

[taurus66]

Do I need to prepare a rebuttal for the defence? Have also received an Allocation Questionnaire.

Does anyone have any comments re the defence received? Is it standard,it looks very complicated to me.

[dar£n]

The defence is std issue.

[dar£n]

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/24031-frequently-asked-questions.html?garpg=9

[dar£n]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[taurus66]

Just going through all my paperwork with monument and came across a letter I received in December 2006. One paragraph stands out....

 

"Failure to make the new minimum payment each month will attract penalty fees and the status of the account will be reported to the credit reference agencies for other lenders to see"

 

Is this a good enough admission re their charges?

[saintly_1]

I would think so ;-) they are admiting to it being a penalty