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Please Could Someone Check My POC ...


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Sorry to be a pain but please please please could someone cast their eye over my POC. I've already filed several claims with the 8% interest before but this is the first POC with CCI ???? Thanks :confused:

 

 

 

Particulars of Claim

 

?????? v Capital One Bank trading as Capital One

 

Account ???????????

 

1. The Claimant has a Capital One Credit Card Account ?????? ("the Account") with the Defendant which was opened on or around ? 200?.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. 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 schedule of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a. The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost 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 are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises 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 The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

 

c. The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

 

 

5. Interest claimed

 

a. The Claimant claims compound interest on the charges to the Account at the annual rate of 34.40%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorize the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

 

5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorized withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

b) In the alternative to 5a), if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

6. Accordingly the Claimant claims:

 

The return of the amounts debited in respect of penalty charges in the sum of £484.00;

 

Court costs;

 

Contractual interest at a rate of 34.40% per annum, compounded daily from the date of each transaction to 03/06/07 of £533.19, as set out in the attached schedule of charges.

 

In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 03/06/07 of £77.85 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.11.

 

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

 

Signed

 

 

 

?????? - Claimant

 

 

Date: 3rd June 2007

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Hi Gorge

 

It is the same wording that I am using for my POC - which was kindly supplied to me by Doo - who had a succesful outcome:D The only bit I think you need to add is the daily rate at which you will claim CCI which would be as below:

Contractual interest at a rate of 34.40% per annum, compounded daily from the date of each transaction to 03/06/07 of £533.19, as set out in the attached schedule of charges. The claimant further claims interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxxxxxx per day.

 

 

To work this daily rate out just change the date on your spready to the next day and then work out the difference to give you the daily rate:D

 

HTH:) I am off to submit my N1 now.....good luck with yours and it seems we will be at round about the same stage so I will keep an eye on your progress.

 

Brownie24

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Hi Brownie 24, hoping you can help, I'm having a thick moment and can't get my head around the N1 claim form - most of it is fine it's just the "value" section, exactly what did you put in that section in relation to the CCI??

 

You could PM if that's easier??

 

Sorry to be a pain it just I want to get this off!

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Hi Gorge

 

In the Value section amend this to your needs.

 

Charges £xxx.xx

Overdraft Interest £xxx.xx

Interest under s.69 County Courts Act 1984 £xxx.xx

Court Fee £xx.xx

 

TOTAL £ xx.xx

 

Plus interest pursuant to S.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £xx.xx per day [(enter daily rate here - (CHARGES+OD interest)x 0.00022 = pence per day)] OR at such rate and for such periods as the court deems just.

 

Hope this sorts out your problem

 

Ukaviator

WARNING TO ALL

Please be aware of acting on advice given by PM .Anyone can make mistakes and if advice is given on the main forum people can see it to correct it ,if given privately then no one can see it to correct it. Please also be aware of giving your personal details to strangers

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Hi Gorge

 

Sorry missed your Q, I'm sure UKaviator's advice is spot on.....he's helped me no end:D

 

Although under value I just put:

 

See attached POC & schedule for detailed breakdown.

 

Total value of charges = £??????

Contractural interest to date = £????????

 

The total amount of claim is then broken anyway down at the bottom of the claim form where I included court fee.

 

Let us know how you get on.......I've not yet sent my N1 form off waiting til Wednesday......payday;)

 

Good luck

 

Brownie24

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