jellybabe vs Vertbaudet **WON**

[Movingon]

Include their defence and any reply you made; but basic process/procedure stuff from the court can be omitted if you wish. It's handy to have a time-line in front of you though - so you can see what happened when... it will help you maintain a grip on your case.

[Movingon]

You're looking in the court bundle for:

 

1. Laws and paragraphs within them which support your case that these charges are unlawful - either as penalties or as charges for a service.

 

2. Statements, interpretations and Judgements in the Case Law you submit, which either support your interpretation of words like "Penalty", "Punitive" and so on, or which support your interpretation of the Laws which you're using.

 

If you have trouble knowing what interpretations, what paragraphs and so on which you're relying upon, let us know; someone like Seminole, Bookworm, Jonni2Bad, Zooman (if he's around) and AlanfromDerby... basically any of the senior mods, will definitely be able to help.

[jellybabe]

oh god, now i'm really confused, lol!

interpretations?paragraphs?

I just printed the whole bundle out.Added my bits to it.numbered the pages and put an index in the front and a covering page showing Claimant, Defendant and Claim nr.

I thought that was it. I feel really stupid right now, and deff any help in pointing me in the right direction is very much appreciated.

[Movingon]

Don't feel stupid hon. This is not an easy thing we do. I'll get together some examples of what I mean, and let you know where I got them from.

[Movingon]

OK, here's an example. It's from the Unfair Terms in Consumer Contracts Regulations 1999 (link in the Statutes Library)

 

Unfair Terms

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.

• (Tom) This means that if a term in a contract screws you over but leaves the bank protected, and the bank didn't give you the opportunity to influence that term, it's an unfair term.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

• (Tom) This further supports the previous paragraph by defining exactly WHEN a term has, or has not, been "individually negotiated" with you.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

• (Tom) In other words, if you're presented with a standard contract, then the whole contract was not "Individually negotiated" and any term within it which benefits the bank to your detriment is an "unfair term".

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

• (Tom) This means that if the bank claim that they negotiated their contract with you (as opposed to presenting you with a standard agreement) they have to convince the court of this; to the Court's satisfaction. The bank will absolutely not go down this road.
  

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

So, you see we can read the Laws themselves, and the Cases you're printing out, and show that they support your case; the paragraph I show above supports you because you're saying in your case that the term in the Bank Account Agreement which allows them to charge you for defaults is basically unfair and therefore unenforceable. The one which allows them to close your account arbitrarily however is NOT unfair because it applies to both you and the bank; either of you can terminate the agreement without notice for your own reasons.

[jellybabe]

I will have a good read through that later.But so far it looks so much easier to understand with your explanations!

I can't thank you enough for all your help.xx

[jellybabe]

Had a "Notice of Acting" today.

Walker Morris Solicitors has been instructed to act on behalf of Vertbaudet.

Anyone heard of them before?

[jellybabe]

did have a look on their website, but couldn't find much that made sense to me.Not that i knew what i was looking for anyway,lol

[Movingon]

Don't worry about who they are; trust me you'll probably never have to meet them, and they are almost guaranteed to be as inept as the ones acting for the banks. I'm pretty sure that Vertbaudet will hire the cheapest one they can find, because "any solicitor can run rings around some oik from the street"... what they don't reckon on, is US LOT IN HERE!!!

 

XXX Keep reading up hon, and keep asking the questions.

[jellybabe]

Thanks. will do:)

I think i 'm so nervous because it is the first of my claims that actually goes that far.And the funny side about it is, the actual claim was only for about £90.

I wonder if you could help me with one other thing, regarding the claim i had against studio cards.It's all settled, but they still haven't amended my credit file.Do you think this letter sounds ok to send?

[

May i thank you again for settling my claim for repayment of charges out of Court.

However, i have noticed that my Credit record has not been updated yet to it's truthful state. You are obliged by Law to show the true conduct of account on those credit files.I therefore demand immediate amendment of my credit file.Late payment markers and adverse information needs to be removed immediately.

I require you to do this within the next 21 days.

/QUOTE]Does that sound ok, or do you think i should word it differently?

I did ask this question in my studio thread, and also another thread, but no one seemed to have noticed it yet.

I am German, and sometimes i am a bit lost with the right words in letters like that.

Thanks x

[Movingon]

Don't thank them for settling your claim; it's YOUR money anyway and they took it unlawfully!! That's like thanking the burglar for bringing your video recorder back after six months or so...

 

Don't just say "by Law", say that "Under the Data Protection Act 1998 any data recorded about me is required to be accurate; the notice on my Credit Reference Files is not accurate and can only be changed by you. I therefore require you to make the necessary adjusments with the relevant agencies within the next 14 days, and confirm such action to me in writing."

 

Wenn Ich denke dass du Deutsch bist, denke Ich auch dass dein Englisch ein paar besser als mein Deutsch ist!!!

[jellybabe]

hey, thanks once again!That sounds much better than mine.A bit more official!But, at least i tried.

And,i won't thank them, you are right there.I think i'm just to good mannered,lol.

I'll have to say, i'm impressed with your German:D

[jellybabe]

I did send Vertbaudet an email to customer services:

Dear Sir/Madam,

You should be aware by now that the amount on this account is in dispute. I

am currently seeking recovery of unlawfully added charges to my account

through the courts (claim Nr: 6QZ61070).

Any charges that have been made since claim date will have to be refunded,

or a new claim will be issued after settlement of the above.

I would appreciate if you could note that no more payments will be made

until this matter is resolved, and no more charges will be made because of

that.

Please confirm receipt of the above by return. I also want to make you aware

that the same will reach you by recorded delivery in the next days.

 

Regards,

Just received the reply:

[

Dear jellybabe

Further to our previous email.

Our credit department have confirmed that they are dealing with a County

court claim, however, despite the charges which have been added, you still

have a balance on the account for goods which were purchased and for which

we are legitimately entitled to ask for payment.

Statements will still be sent out and they suggest you continue to pay the

required amount each month.

We apologise for any inconvenience caused.

Kind regards

Lynne Kilner/QUOTE]

Any advice?the claim is now on £94.68, and they already took another £24 as charges since claim.I think the amount on my account is £180 something(including all my charges).

can i not ask for them to freeze the account until the claim is settled??

[Movingon]

I would advise you, as they suggest, to pay for the goods as well as you can. Obviously ignore that portion which is in dispute, just pay what you can against the actual balance each month. If you make payments of any description, they will find it very difficult to take you to court for non-payment. Also, they can add as many charges as they like; you and I both know that they will be zeroing these out. Make sure you know exactly how much you have to pay for in goods and don't pay a penny more.

[jellybabe]

ok, thanks. I will take your advice and bite in the sour apple. I will calculate exactly what i have left to pay, taking the charges off, and then pay the whole amount outstanding in one go. At least then i know i paid up and it's time for them to do their bit.

[jellybabe]

StoneLaughter, if you're around, could you please have a look at my jellybabe v studio cards thread?

I need some advice regarding the letter i've sent about my credit file.

Thanks a lot

[jellybabe]

I still haven't heard nothing off Vertbaudet or their solicitors yet. And my Hearing date is the 18th Jan!

[Movingon]

Haven't heard NOTHING? What did they say?

[jellybabe]

LOL....as a matter of fact.....NOTHING!

Anyway, just prepared the letter you gave me once again, to send to Walker Morris (i did send the other one to the old solicitors they had).

I added a few bits on to it, so maybe you could tell me if i can send it like that:

Dear Sir/Madam,

WITHOUT PREJUDICE

I would like to draw your attention to the subject claim brought by myself against your client, Vertbaudet UK. I am sure that you are aware of the commercial burden such a claim places upon your client in the way of costs and so on, especially if the claim is lost. Further, you will be aware that I have requested that the court order Standard Disclosure in this case which, if ordered, will place a further administrative as well as financial burden upon yourselves and your client.

With these facts in mind I am writing to offer you the opportunity to settle this matter in full prior to the necessity for a court appearance. I am willing to accept a cheque, Banker’s Draft made payable to Mrs.xxxxxxxxxx or credit to my Vertbaudet account nr.xxx-xxx-xxx, in the sum of £xxx.xx plus the charges levied on my account since claim date , offered unconditionally in full and final settlement of my claim.

I would be grateful if you could make me aware of your client’s inclination regarding this matter with the utmost urgency; you will be aware that the hearing is scheduled for 18th January 2007. I would also like to remind you that you have still not submitted your response to my court bundle which was received by you on the 04th December 2006. As you will appreciate it has been ordered by the Judge that you send your response within 28 days after receiving mine, which will leave you now only until the 01st January 2007 to respond.

I look forward to your prompt response,

Regards,

[Bookworm]

Remove the "Without Prejudice" !!!

 

"offered unconditionally in full and final settlement of my claim." Remove that. You are the Claimant, you do not have to make concessions.

I would also like to remind you that you have still not submitted your response to my court bundle which was received by you on the 04th December 2006. As you will appreciate it has been ordered by the Judge that you send your response within 28 days after receiving mine, which will leave you now only until the 01st January 2007 to respond.

 

Now, I'm confused. The judge ordered them to reply to your court bundle? Are you sure?

 

Court directions usually order that information intended to rely upon at the hearing be exchanged no later than 14 days before the hearing date, can you post here what yours said?

[Movingon]

The "Offered unconditionally in full and final settlement of my claim" is asking them to make any offer they make UNCONDITIONAL - it is not jellybabe making concessions. It's just forestalling them asking for confidentiality et al

[jellybabe]

Thanks for stooping by Bookworm.

I will remove the "without prejudice"and the other bit then:oops:

I hope i didn't misunderstand the court directions:oops:

Here is what they say:

The Claimant shall within 28 days of service of this order send to the Defendant and to the court:

a)A schedule setting out each charge repayment of which is sought, showing the date,amount and reason given (if any) for that charge being made;

b)copies of any statement or other document relied upon as showing that each and every such charge had been made;

c)A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

d)Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

2)The Defendant shall within 28 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed:

a)Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

b)Whether such charge is accepted to be a penalty, and if not, why not;

c)If such charge is alleged to be a pre-estimate of teh Defendant's loss incurred by the Claimant's actions (whether or not such action is to be treated as a breach of the contract between the parties), all facts and matters intended to be relied upon as showing that such is a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was.

d)Any witness statements;

e)Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

I probably got it all wrong when i read it, i'm not too good with these things.

[jellybabe]

mmh, am i supposed to leave it in now or not:confused: LOL

[Movingon]

It certainly seems that the Defendant has been ordered to file their detailed defence paperwork as a response to the Claimant's detailed case within 28 days of receiving same...

 

leave it in for now unless Booky says different.

[jellybabe]

thats how i understood it. but will wait a little to see what Bookworm says.

All this is very confusing, or maybe i'm just too daft;)