Defence filed, Can someone please look over

[Kerrie78]

Hi all.

I have successfully claimed back bank charges of my own against 4 or 5 different companies, the longest process being against Abbey and filing court bundles etc.

 

However, since then, the process seems to have changed so as I began my dads Citicard claim a few months ago I am now a little stuck.

 

My dads Citicard had been passed over to Cabot, who arranged a settlement figure with my father, which he paid so his account balance is now zero.

 

We decided to start procedings against Citicard, got statements, filed prelim, lba etc, all refused/fobbed off by Citicard.

Next stage was to file MCOL, they acknowledged, then yesterday my dad received a defence, which I must admit, has thrown me, also because the Judge doesnt want an AQ filed. heres what he got: (sorry it's long!)

 

Notice of Transfer of Proceedings:

A defence to this claim has been filed.

the claim has been transferred to the court where the claimant lives.

Please read the accompanying document carefully.

All further communication should be addressed to:

XXXXX

 

Then on the letter from Northampton County Court

It is ordered that:-

1. the filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise.

Note: Any party affected by this Order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of the service of this order.

 

Now here is Citicards defence.

 

1. the Defendant is a credit card company whose registered office is at xxx

2. The defendant admits that the claimant had a credit card account with the defendant during the relevant period.

3. The defendant avers that the Agreement with the Claimant contains terms entitling the Defendant to levy default fees and avers that the Claimant was aware of and agreed to the the same as before entering into the agreement.

4. The Defendant denies that the same are:

4.1 a disproportionate penalty and unenforceable or irrecoverable as penalty charges at common law and/or

4.2 invalid under section 4 of the UCTA 1977 and/or

4.3 para 8 and sch 2 ( (1) e) of the UTCCR 1999; and/or

4.4 unreasonable under section 15 of the SGSA 1982 and puts the Claimant to proof of this by specific reference to the case law relied upon and/or the exactitastion of the relevant parts of the sections of laws and regulations relied upon.

5. The Defendant denies that it has unlawfully debited the Claimants account. the Defendant avers that the Claimant expressly authorised the Defendant to levy such charges on the express understanding that the trigger for any such charge would be the Claimants own breach of the Agreement.

6. the defendant avers that between 2002 and 2006, the Claimant breached the Agreement on dozens of occasions thereby authorising the Defendant to debit fees to the Claimants account by way of default fees, as per the T&C of the Agreement.

7. The Claimant is claiming as a money claim a sum equivalent to that which he claims was unlawfully debited to his account over the term of the Agreement in late payment and overlimit fees. This claim is entirely based on the recent OFT statement on the alleged unfairness of such default fees. The OFT stated that the level at which default charges, though not the principle of default charging itself, was unfair in the context of the UTCCR 1999. It is also reported that the charges were, in its opinion, a penalty contrary to common law principles of damages for breach of contract.

8. The Defendant has agreed to abide by the OFT and adopt a lower level of default fees which it has set at the new industry standard of £12. Over the lifetime of this account the Claimant has set its default charges at £25.

9. The Claimants account with the Defendant was consistently in arreas and was charged off and assigned to Hillesden Securities Limited in or around May 2006. At the time the debt was sold to Hillesden, the balance of the account was £1, 436.93 in debit, i.e. outstanding from the Claimant a sum substantially in excess of the Claimants alleged claim.

10. The Defendant avers that the Claimants claim is not a money claim but a damages action and further avers that the claimants interest calculation is not applicatble to this action or, if it is applicable, that it is wholly wrong and the Defendant puts the Claimant to strict proof that this or any interest is owed. Specifically, the Defendant avers that the principle of mutuality and reciprocity do not apply to this Agreement which was entirely contractual and that the Court has no power to amend the contract to amend the same.

11. Furthermore, the Defendant avers Claimant has claimed interest from the date each default fee was incurred, rather than date of any payment of such default fee by the Claimant. As the defendant is a c redit institution and not a deposit taker, it cannot set off default fees against money held on account. As such, it cannot be held liable for interest on a notionally paid debt rather than an actual one. The Claimant has a current outstanding balance on his account held by Hillesden and, as such, never paid the balance of his account, including the default fees imposed. It is averred by the Defendant that it is only from the time of any such payment that interest could have accrued on such payment as if it were a debt.

12. Save as otherwise admitted, the Claimants Particulars of Claim are denied and each and every allegation in the Particulars of Claim specifically denied.

[Kerrie78]

Sorry about the long post.

 

My dad's account was never passed to Hillesden, he has never heard of them. The account was passed to Cabot, and he paid them in full at a reduced settlement figure to pay off the balance.

 

As I haven't been through this process before, mine all entailed submitting the AQ etc, I don't know where we stand. it is normal for Citicard to file such a huge Defence?

[mrsfoot]

Hi all.

I have successfully claimed back bank charges of my own against 4 or 5 different companies, the longest process being against Abbey and filing court bundles etc.

 

However, since then, the process seems to have changed so as I began my dads Citicard claim a few months ago I am now a little stuck. Its not the process, its just simply Citi liek to make it dificult from the start!

 

My dads Citicard had been passed over to Cabot, who arranged a settlement figure with my father, which he paid so his account balance is now zero.

 

We decided to start procedings against Citicard, got statements, filed prelim, lba etc, all refused/fobbed off by Citicard.

Next stage was to file MCOL, they acknowledged, then yesterday my dad received a defence, which I must admit, has thrown me, also because the Judge doesnt want an AQ filed. heres what he got: (sorry it's long!)

 

Notice of Transfer of Proceedings:

A defence to this claim has been filed.

the claim has been transferred to the court where the claimant lives.

Please read the accompanying document carefully.

All further communication should be addressed to:

XXXXX

 

Then on the letter from Northampton County Court

It is ordered that:-

1. the filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise.

Note: Any party affected by this Order may under Rule 3.3 (5) apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.3 within 14 days of the service of this order.

It is more and more regular now that the courts are doing away with the AQ. The AQ is there to help the Judge decide on which track to place the case. If your dads case is well below £5k then it can and only shoud be dealt with in the small claims, therefore leaving no need for the AQ to be completed.

 

Now here is Citicards defence.

 

1. the Defendant is a credit card company whose registered office is at xxx

2. The defendant admits that the claimant had a credit card account with the defendant during the relevant period.

3. The defendant avers that the Agreement with the Claimant contains terms entitling the Defendant to levy default fees and avers that the Claimant was aware of and agreed to the the same as before entering into the agreement.

4. The Defendant denies that the same are:

4.1 a disproportionate penalty and unenforceable or irrecoverable as penalty charges at common law and/or

4.2 invalid under section 4 of the UCTA 1977 and/or

4.3 para 8 and sch 2 ( (1) e) of the UTCCR 1999; and/or

4.4 unreasonable under section 15 of the SGSA 1982 and puts the Claimant to proof of this by specific reference to the case law relied upon and/or the exactitastion of the relevant parts of the sections of laws and regulations relied upon.

They are saying for the Judge to make a decision that the charges are unenforceable, you must refer each charge to the clause it relates to in the contract and then demonstrate this further by identifying which cases and sections of the law applies to the charge.

5. The Defendant denies that it has unlawfully debited the Claimants account. the Defendant avers that the Claimant expressly authorised the Defendant to levy such charges on the express understanding that the trigger for any such charge would be the Claimants own breach of the Agreement.

Nice of them to admit they charge for a breach....this will help with your claim as they already describe the act as a breach.

6. the defendant avers that between 2002 and 2006, the Claimant breached the Agreement on dozens of occasions thereby authorising the Defendant to debit fees to the Claimants account by way of default fees, as per the T&C of the Agreement

Exactly, that is why the charges are unenforceable in accordance with UTCCRs and against OFTS guidlines.

7. The Claimant is claiming as a money claim a sum equivalent to that which he claims was unlawfully debited to his account over the term of the Agreement in late payment and overlimit fees. This claim is entirely based on the recent OFT statement on the alleged unfairness of such default fees. The OFT stated that the level at which default charges, though not the principle of default charging itself, was unfair in the context of the UTCCR 1999. It is also reported that the charges were, in its opinion, a penalty contrary to common law principles of damages for breach of contract.

8. The Defendant has agreed to abide by the OFT and adopt a lower level of default fees which it has set at the new industry standard of £12. Over the lifetime of this account the Claimant has set its default charges at £25.

You set your charges at £25??? I think they mean the Defendant had set it!

It is not a new industry standard at all. Above £12 is the level at which the OFT would investigate, this is not a £12 set figure like they are claiming.

9. The Claimants account with the Defendant was consistently in arreas and was charged off and assigned to Hillesden Securities Limited in or around May 2006. At the time the debt was sold to Hillesden, the balance of the account was £1, 436.93 in debit, i.e. outstanding from the Claimant a sum substantially in excess of the Claimants alleged claim.

Wrong information. You caninform the court of this at the hearing.

10. The Defendant avers that the Claimants claim is not a money claim but a damages action and further avers that the claimants interest calculation is not applicatble to this action or, if it is applicable, that it is wholly wrong and the Defendant puts the Claimant to strict proof that this or any interest is owed. Specifically, the Defendant avers that the principle of mutuality and reciprocity do not apply to this Agreement which was entirely contractual and that the Court has no power to amend the contract to amend the same.

Blah blah blah. If the interest you have claimed is the interest applied to the charges then this is contractual. However you cannot claim contractual interest and s.69 county court act 8% interest. Amend your claim if this is the case.

11. Furthermore, the Defendant avers Claimant has claimed interest from the date each default fee was incurred, rather than date of any payment of such default fee by the Claimant. As the defendant is a c redit institution and not a deposit taker, it cannot set off default fees against money held on account. As such, it cannot be held liable for interest on a notionally paid debt rather than an actual one. The Claimant has a current outstanding balance on his account held by Hillesden and, as such, never paid the balance of his account, including the default fees imposed. It is averred by the Defendant that it is only from the time of any such payment that interest could have accrued on such payment as if it were a debt.

Get all your dads papers from the DCA which show the debt is cleared, and add this to the court bundle.

12. Save as otherwise admitted, the Claimants Particulars of Claim are denied and each and every allegation in the Particulars of Claim specifically denied.

 

The defence is pretty standard. The mistakes they have made with regards the DCA is irrelevant although make sure you have the proof in the bundle. All this proves is that Citi makes mistakes.

You now have to wait to hear from your local court. When that order comes through it may be that you need to complete an AQ if your local Judge wants that. At the very least you should now:

 

List every charge and refer it to the relevant clause in your contract

Make a note of what case / law refers to that charge and briefly explain why you think it applies.

Begin to build your bundle

For you to be able to help your dad in the court process you may ned to apply to the court to become a party to the claim. Phone the court and ask them for advice on how to do this.

 

Hope this helps

[texel]

I had a similiar defence sent to me and after hours( it seemed like that) working how I was going to handle everything CITI did not turn up at court so I won by default

[Enron]

That said they do tend to turn up to the majority of claims, so would be inclined to prepare as much as possible.

[Kerrie78]

Thanks. I have begun preparing the 3 lots of court bundle already for my dad. I am unsure if he has received anything further from the Court as he is away on holiday until Thursday. I think it's up to the Court to just issue a court date if I've been reading things correctly.

[gizmo111]

Thanks. I have begun preparing the 3 lots of court bundle already for my dad. I am unsure if he has received anything further from the Court as he is away on holiday until Thursday. I think it's up to the Court to just issue a court date if I've been reading things correctly.

 

Ok Citi will turn up and you will need to be prepared - Especially on the DCA arguments, and also the interest. Where interest at 8% is claimed fro mthe dte of the charge Citi are challening and saying it should be the date that you paid it.

 

I expect Hillesden just sold the account on to Cabot - but SAR Cabot for all info. What amount was your dad defaulted for on his credit file, as this will prove liability for the whole howver much you paid back - also Citi's T&C clearly show that any payments made go to charges and interest before the core debt.

 

Was this originally an associates account?

 

When does your bundle need to be in by?