Very/NDR catalogue PENALTY charges reclaim - filing for court **WON***

[surrey_36]

THANKS DX - LAST QUESTION!

When you say send the 'two off' - do you mean one to the creditor and one to the DCA?

Cheers..

yes

 

thank you.

 

dx

[dx100uk]

huh

 

what has the DCA got to do with a reclaim.....the OC!!

 

dx

[surrey_36]

Ok cheers dx - when you said send two off what two docs

Sorry :0/

[surrey_36]

Oh the template letter and completed spreadsheet?

huh

 

what has the DCA got to do with a reclaim.....the OC!!

 

dx

[dx100uk]

yes

 

do keep up at the back...

 

dx

[surrey_36]

yes

 

do keep up at the back...

 

dx

sorry DX I got there in the end

[surrey_36]

I sent off the letter requesting repayment of charges by recorded delivery which they signed for on the 27/09/12 and have not had any response from them yet, the letter said they had 14 days to comply so just wondering what I should do next being as they are over the 14 days? Cheers!

sorry DX I got there in the end

[ims21]

If you plant to take this to the end and go to court on this then your next step would be a 14 day lba.

 

Same as your preliminary but headed "Letter Before Action" and with the final paragraph amended to tell them if they do not refund within 14 days you will issue in court without further recourse to them.

 

Send an updated spreadsheet with it and remember to amend the figures in the lba.

[surrey_36]

Thanks for reply ims21 I will do that thank you

Why dO i have to amend the figures sent in the previous letter? Thank you for ur help!

 

If you plant to take this to the end and go to court on this then your next step would be a 14 day lba.

 

Same as your preliminary but headed "Letter Before Action" and with the final paragraph amended to tell them if they do not refund within 14 days you will issue in court without further recourse to them.

 

Send an updated spreadsheet with it and remember to amend the figures in the lba.

[ims21]

Because you want to claim the updated interest amount.

[surrey_36]

Thanks Ims, Ive looked at my most recent statement from NDR and they have charged another £12.00 'Late payment fee' and also £14.65 Account Interest - so do I just enter this into the spreadhseet or should I be including court costs, sorry im confused

[ims21]

Add the £12 to your spreadsheet.

 

Make sure the "Claim To" date is set to today.

 

Use the resultant figures from the spreadsheet in your lba.

 

There are no court costs yet.

[surrey_36]

Add the £12 to your spreadsheet.

 

Make sure the "Claim To" date is set to today.

 

Use the resultant figures from the spreadsheet in your lba.

 

There are no court costs yet.

thanks ims21, had a reply to my LBA today which says;

 

'I have investigated your complaint and from looking at your account I can see that the charges have been applied correctly, in accordance with the stated terms and conditions of the account and as a result of payments not being made as requested in account statements issued every 28 days. I am therefore unable to uphold your complaint however, on this occasion as a gesture of goodwill I have decided to remove three of these charges. In total £35.00 has been credited to your account which you will see reflected on your next or following statement. I trust our explantion meets with your staisfaction etc etc If you are not happy contact the FOS etc etc.'

 

Am i right in sayng my next step is small claim online?

 

Thanks ims21!

[ims21]

Correct.

 

Money Claim On Line is the place to go to issue your claim.

 

Also start reading around the forums to see what is involved in taking this through the courts.

[surrey_36]

Thanks ims - Im going ahead with MCOL as advised in one of your other posts and just wondering about the details i enter into the POC section. Do I basically just put 'unlaw charges' or do I have to explain that the whole sityuation in quite a lot of detail. Cheers again!

[surrey_36]

Hi IMs ive had a read through the forums and the only thing i cant seemt o clarify is what i should be entering into POC section, not sure if I just basically put 'unlawful administration charges/excessive charges' or if i have to list all the payments taken etc. If you could point in right diorection would be massively thankfull :)

[ims21]

Post #62 onwards here will help you.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**/page2

 

Amend to suit your particular account but the principles are the same.

[surrey_36]

:madgrin:Hi Ims, Ive been reading and have information overload! Im reading Shelley181146 POC and thinking right i need to amend this to my case but then her one mentions a credit card and seems to have the terms and conditions of the creditor copied in and all of a sudden reading more through her POC Im feeling well out of my depth, she seems pretty clued up and I feel like i dont know where to start -can I just check am I reading the right thing - im looking at #62 which shows a copy of Shelley181146 POC ?

Thnaks ims!

[surrey_36]

bump

Post #62 onwards here will help you.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**/page2

 

Amend to suit your particular account but the principles are the same.

[ims21]

Sorry...not sure why the "bump".

 

Have you drafted a PoC yet? If so post it up for review. If not then the next step is get a draft done.

 

You can use Shelley's as a base.

 

If I've missed something please let me know.

[surrey_36]

Thnaks ims - ok heres my shot at the POC!

New POC Shop Direct Group / Very /NDR (N1)

Claim No [ ]

 

IN THE [ENTER YOUR LOCAL] countycourt

 

 

BETWEEN

 

[YOUR FULL NAME]

Claimant

 

and

 

 

-Shop Direct Group

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendanton or around 10/11/2007, whereby the Defendant was to advance credit facilitiesto the Claimant under a running credit account, Account no xxxxxxxxxx("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimantwith a credit account which would allow the Claimant to make purchases from theShop Direct Group. In return the Defendant was entitled to charge interestat the published rate.

 

3.The Agreement was a Regulated Agreement for the purposes of the ConsumerCredit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standardterms and conditions which could be varied from time to time.

 

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerousdefault charges to the Account for the Claimant’s failure to make the minimumpayment on the due date and or for exceeding the credit limit and or if apayment is returned. (Full particulars are set out in schedule 2).

 

6.The defaultcharges were applied in accordance with the standard terms of The Agreementwhich 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 addedto the Account.

 

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 wasentitled to use the Card to make purchases and receive cash advances up to acredit limit (“the Limit”) set by the Defendant. The Defendant couldunilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases at thepublished rate.

© The Claimant was to pay the minimum payment of £25 by the due date asnotified in the monthly statements.

(d) In addition the Defendant was entitled to charge administration fees (“theCharges”) where the Claimant did not pay on the due date or had a paymentreturned. The Chargesare currently £12 for each transgression.

Penalty

 

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 damagewhich would have been suffered by the company in relation to the Claimant’stransgressions.

 

11. In the premises the Charges were punitive and a penalty and thusunenforceable 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 Chargeswere unfair within regulation 5 of the Regulations in that contrary to therequirement 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 contentionthat the terms are to be assessed as unfair as at the time of the conclusion ofthe Agreement, and of each revision to the Standard Terms.

(1)The terms relating to Charges were standard terms; they would not beindividually negotiated.

(2)The Charges were a penalty for breach of contract.

(3)The Charges exceeded the costs which the Bank could have expected to incurin dealing with the exceeding of the credit limit, late payment or returnedpayment.

(4)Accordingly the Charges were a disproportionate charge incurred by the Claimantfor their failure to meet their contractual obligation and thus within theambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfairterm.

(5) As the Bankknew, the Charges were of subsidiary importance to the customer in the contextof the Agreement as a whole and would not influence the making of theAgreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairnessof the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to thecustomer who incurred them, and cause an imbalance in the relations of theparties to the Agreement by subordinating the customer’s interests to those ofthe 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 underregulation 6 of the Regulations and relies on the following matters.

(1) The assessment of fairness does not relate to terms which define the mainor core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price orremuneration as against the goods or services supplied in exchange (in otherwords, whether or not the relevant services were value for money).

(3) TheCharges are correctly described as default charges by the Defendant in the keyinformation provided to new customers.

16. By reasonof the said matters the terms were not binding under regulation 8 of the Regulations.

17.The Defendant wrongly applied Charges to the Account totaling some £576.00between 10/11/2007 and 08/09/2012 Particulars appear from Schedule 2.

 

18. On 25/09/2012 the Claimant demanded repayment of the sums wrongly applied.

 

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

 

And the Claimant claims

 

(1) A declaration that the sums totaling £576.00 have wrongly been applied tothe Account

 

(2) Payment of the said sum of £576.00 and interest of £1462.19 applied by theDefendant thereon.

 

(3) Interestunder section 69 of the County Courts Act 1984 at the rate of 8% per annum fromthe date of payment of the Charge to date in the sum of £163.06 and at thedaily rate of [ xx ] until judgment or sooner payment.

(4) Court costs of £80.00

I believe that the facts stated in these particulars, comprising of x pages,are true.

 

Dated

 

 

 

Signed

[surrey_36]

Hi ims - just wondered if you might be able to check my POC that ive attempted! I think there might be a few errors as Im not quite sure what im doing :o/

thank you for your help

Sorry...not sure why the "bump".

 

Have you drafted a PoC yet? If so post it up for review. If not then the next step is get a draft done.

 

You can use Shelley's as a base.

 

If I've missed something please let me know.

[ims21]

I have flagged it for the more legal minded in the team to pop in and have a look for you

[surrey_36]

thats great thanks Ims!

[citizenB]

(5) As the Bank 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.

Is this correct ? Surely if you believed they would slap charges on whether you were one hour, one day or one month late.. it would influence your decision to enter into an agreement.. wouldnt it ?