Associates/Citifinancial Unfair charges claim

[AndyOrch]

Hi Shelley.

 

Have you made a response to their Defence as yet?

 

Regards

 

Andy

[Shelley181146]

Hi Shelley.

 

Have you made a response to their Defence as yet?

 

Regards

 

Andy

 

Hi Andy,

No, I haven't responded as yet. In all honesty, I was hoping that I wouldn't need to. But, I will be guided by opinion/advice please.

 

I have spoken to my contact yet again today and they still haven't received any further information and sound just as frustrated as me

 

Regards

Shelley

[Shelley181146]

Hi Andy & everyone,

I have finally got a response from the CCMCC today, following my persistence getting hold of Bow C.C.

 

However, it is not the answer I was hoping for naturally.

 

The DJ sends his apologies for the mis handling of this matter but said now that the defence has been submitted, it must run it's normal course

 

My contact at the CCMCC has said that they will ensure I am given enough time to have to return the AQ (when they get around to sending it out to me) because I am due to go on holiday this week-end.

 

Would appreciate if you would look over post #18 at Citi's defence please to give me some tips on how to defend?

 

Looks like I have got some homework to do (again)........

Shelley

[AndyOrch]

Hi Shelley responding to your PM.

 

 

In view of the impending AQ and Notice of Allocation it would be prudent to prepare a response to their defence.

 

Some guidance on their argument and basis of defence.

 

Any question of how the law of limitation applies to bank charges is perhaps premature since it has yet to be established that they are recoverable. That does not stop the point arising. Let's assume for the sake of argument that some or all bank charges are recoverable.

 

Anyone who argues that section 32 (1) of the limitation act 1980 means that customers can claim charges going back more than six years faces an uphill struggle.

 

The law of limitation exists because it has been decided that there must come a point in people's affairs where there is certainty. That overriding objective must be borne in mind.

 

The English law has long recognised that clear rules strictly applied can lead to injustice. In the case of limitation it recognises that the strict application of time limits may lead to injustice and hence section 32 (1) of the Limitation Act 1980 which allows (in the words of the heading to the section) "Postponement of limitation period in case of fraud, concealment or mistake".

 

In any case where the section 32 (1) is pleaded the court will bear the overriding objective in mind; it will not allow the section 32 tail to wag the Limitation Act dog as that would undermine the whole principle of limitation.

 

In any action you first have to show that there was some "fraud, concealment or mistake" within the meaning of the Act - I italicise those words as they important. Then you are up against the question of when it was that the "fraud, concealment or mistake" could with reasonable diligence have been discovered as that is the moment from when time begins to run.

 

I have conducted some online research and my impression is that the decisions on how section 32 (1) should be applied are not consistent. That is I suppose to be expected since the subsection exists to mitigate the harshness of the overriding principle if strictly applied in every case.

 

Whilst my intuitive feeling is that section 32 (1) is not going to be of assistance in bank charges claims, I do not wish to be dogmatic on the point but above all to stress that how the law applies to bank charges is far from certain. I therefore urge those who insist the law is certain in favour of the consumer to restrain themselves for fear of creating expectations that cannot be realised. We have already had enough of that when it comes to bank charges.

 

Regards

 

Andy

[Shelley181146]

Hi Andy,

 

I appreciate your response but will have to re-read it shortly to absorb it's contents.

 

I note that you mention Bank charges but these are C.C charges. Is that viewed differently in respect to section 32(1)?

 

I am quite concerned about the timescales involved because I am due to go on holiday tomorrow (previously cancelled twice due to ill health) and will have limited internet access whilst away.

 

I understand your viewpoint on 'rose coloured spectacles' but if you remember last year, I was bitten by that with the company who shall remain nameless, which is why I need to make doubly sure I defend correctly.

 

I would really appreciate your guidance and assistance with this case, as and when possible but I respect you are a very busy man.

 

Regards

Shelley

[AndyOrch]

You could use your WS as a response Shelley therfore await the AQ and Notice of allocation(and directions) then respond within your WS.I personally would take the Holiday and put this behind you for now.I will try to post some points on response whilst you are away.

 

Regards

 

Andy

[Shelley181146]

Hi Andy,

 

I would appreciate your assistance with my WS upon my return please.

I have struggled to get internet access whilst away and hope this message gets through.Hence my message is brief.

According to family members the AQ has not yet arrived.

The holiday is a wash out at the moment - floods everywhere

 

Regards

Shelley

[AndyOrch]

Sorry to hear that Shelley re the floods.Just give me a nudge when the WS is required.

 

Regards

 

Andy

[Shelley181146]

Sorry to hear that Shelley re the floods.Just give me a nudge when the WS is required.

 

Regards

 

Andy

 

Hi Andy,

 

I have yesterday, received the AQ for completion albeit it is dated 21st September, the CCMCC has given me an extension until next week to complete it and get it in to them, due to my holiday and their mistakes within the processing of documents earlier in the proceedings.

 

I do have a copy of the Defendants AQ which clearly states my local court named at the top of it - however, my AQ received from the CCMCC has 'CCMCC' at the top. So, to answer the question re which court should it be heard at, should I reiterate my local court name? If that makes sense?

 

Is this where I attach the WS?

 

Cheers,

Shelley

[AndyOrch]

Hi Shelley

 

The norm is that the Claim is heard in the defendant's court however you being LiP and the Claimant vs a Financial company differs to the norm and you may state that within your AQ you wish th cliam to be processed at your local CC.

The WS will not be required until the claim has been allocated and you have received The Notice of Allocation with direction and timetable of how the claim is to respond.

 

Subject to which track the claim will be placed the Notice of Allocation may vary SCT will be less formal Fast Track more in depth, WS may even be dispensed with at SCT and you may be invited to submit a case summary, so until you receive Notice of Allocation your response to the defence will be restricted.

 

The other option is if the defence in your opinion has no merit you could make application within the AQ for Summary Judgment supported by a WS as to why the claim should not proceed to trial and be summary judged.

 

Options options but this all relies on the strength of your claim.

 

Regards

 

Andy

[Shelley181146]

Hi Shelley

Hi Andy,

The norm is that the Claim is heard in the defendant's court however you being LiP and the Claimant vs a Financial company differs to the norm and you may state that within your AQ you wish th cliam to be processed at your local CC. [/color]Ok.

The WS will not be required until the claim has been allocated and you have received The Notice of Allocation with direction and timetable of how the claim is to respond. I understand.

 

Subject to which track the claim will be placed the Notice of Allocation may vary SCT will be less formal Fast Track more in depth, WS may even be dispensed with at SCT and you may be invited to submit a case summary, so until you receive Notice of Allocation your response to the defence will be restricted. [/color]The defendants agree to staying within the SCT

 

The other option is if the defence in your opinion has no merit you could make application within the AQ for Summary Judgment supported by a WS as to why the claim should not proceed to trial and be summary judged. Well, because the charges were applied more than 6 years ago, I have the Kleinwort Benson fight to get across in my defence, which as you know didn't go quite so well with Crap One. What's your thoughts on this with Citi and the defence I rec'd from them and posted #18 earlier in my thread?

 

Options options but this all relies on the strength of your claim.

 

Regards

 

Andy

 

Cheers,

Shelley

[AndyOrch]

I would have to refresh myself with the defence Shelley ...you have been on Holiday and I have slept since:wink:

[Shelley181146]

I would have to refresh myself with the defence Shelley ...you have been on Holiday and I have slept since:wink:

 

Hehe. Of course Andy. And you in great demand but I appreciate your input.

 

Huge thanks

Shelley

[Shelley181146]

I would have to refresh myself with the defence Shelley ...you have been on Holiday and I have slept since:wink:

 

Hi Andy,

 

I am in the process of completing the AQ (N149) and would like to ask your opinion on the following;

 

A = No

B = Yes - LiP require local court

C = Yes

D = Nil

E = No

F = Yes and I can provide dates - Will not be using an interpreter

G = Other information = What is appropriate to be entered here?

H = Self explanatory

 

In particular it is B & G I am unsure about.

 

The Defendant's copy of AQ states the name of my local court but the copy I have received states CCMCC which is why I have answered (B) as I have.

 

The Defendant's have also stated in their section on (G) that the Claim is NOT complex and considers that the final hearing can be dealt with within 3 hours.

 

Hope you can spare me a moment please.

 

Cheers

Shelley

[Shelley181146]

Would appreciate Cagger's opinion on this please

[MARTIN3030]

Hi Shelley I will give Andy a shout.

[Shelley181146]

Thanks Martin.

Would appreciate his opinion. I know it's small detail but I would like to make sure I get it right. I have to get it in tomorrow at the latest.

[MARTIN3030]

Ok I see Andy is offline but I have flagged it up for him-should be sorted in time.

[MARTIN3030]

Oops he is here already

[AndyOrch]

Hi Andy,

 

I am in the process of completing the AQ (N149) and would like to ask your opinion on the following;

 

A = No (Why ? its always an advantage to the claimant and shows you are amicable and open to offer/mediation to save costs and court time)

B = Yes - LiP require local court Ok

C = Yes

D = Nil

E = No

F = Yes and I can provide dates - Will not be using an interpreter

G = Other information = What is appropriate to be entered here? What have the Defendants stated shelley in G?

 

 

H = Self explanatory

 

In particular it is B & G I am unsure about.

 

The Defendant's copy of AQ states the name of my local court but the copy I have received states CCMCC which is why I have answered (B) as I have.

 

The Defendant's have also stated in their section on (G) that the Claim is NOT complex and considers that the final hearing can be dealt with within 3 hours.

 

Hope you can spare me a moment please.

 

Cheers

Shelley

 

Regards

 

Andy

[Shelley181146]

Regards

 

Andy

 

Hi Andy,

 

I will change (A) to yes

This is what I intended to answer for (B)

Section B :-

 

I would respectfully ask that the case be heard at my local county court at Dudley. I am a Litigant in Person and the defendant is a large financial institution able to instruct local Counsel to represent them anywhere. I have limited financial resources and the costs of travel any distance from my home would be prohibitive. I am also full time carer for my severely disabled husband and cannot leave him for any significant period of time.

 

The Defendants have said the following;

 

"The Defendant believes that it is appropriate for thie case to be allocated to the Small Claims Track for the following reasons;

1) The Claimant's Claim is for damages and/or losses of about £425 plus interest & therefore well within the Small Claims Track limits.

2) The Claimant is a litigant in person and appears to be exempt from Court fees. The Defendant also wishes to keep any applicable costs to a minimum.

3) The Claim is not complex and the Defendant considers the final hearing can be dealt with within 3 hours.

 

This is what I intended to put in (G) on my AQ;

Section G :-

 

In the absence of acknowledgement of the claim or any defence, I applied to the court for Judgement to be entered In Default. I understand the defendant entered a late acknowledgement and, subsequently, a defence. I will leave the court to decide if the defendant's late submissions are to be accepted so that the claim continues.

 

Feel free to rip it to shreds and advise as you see appropriate.

 

Shelley

[AndyOrch]

Hi Andy,

 

I will change (A) to yes

This is what I intended to answer for (B)

Section B :-

 

I would respectfully ask that the case be heard at my local county court at Dudley. I am a Litigant in Person and the defendant is a large financial institution able to instruct local Counsel to represent them anywhere. I have limited financial resources and the costs of travel any distance from my home would be prohibitive. I am also full time carer for my severely disabled husband and cannot leave him for any significant period of time. Excellent

 

The Defendants have said the following;

 

"The Defendant believes that it is appropriate for thie case to be allocated to the Small Claims Track for the following reasons;

1) The Claimant's Claim is for damages and/or losses of about £425 plus interest & therefore well within the Small Claims Track limits.

2) The Claimant is a litigant in person and appears to be exempt from Court fees. The Defendant also wishes to keep any applicable costs to a minimum.

3) The Claim is not complex and the Defendant considers the final hearing can be dealt with within 3 hours.

 

This is what I intended to put in (G) on my AQ;

Section G :-

 

In the absence of acknowledgement of the claim or any defence, I applied to the court for Judgement to be entered In Default. I understand the defendant entered a late acknowledgement and, subsequently, a defence. I will leave the court to decide if the defendant's late submissions are to be accepted so that the claim continues. It is requested that the Court uses its discretion in deciding that the Claimants late submissions be acceptable and justified.

 

Feel free to rip it to shreds and advise as you see appropriate.

 

Shelley

 

Regards

 

Andy

[AndyOrch]

The Defendants have said the following;

 

"The Defendant believes that it is appropriate for thie case to be allocated to the Small Claims Track for the following reasons;

 

1) The Claimant's Claim is for damages ? and/or losses of about £425 plus interest & therefore well within the Small Claims Track limits.

2) The Claimant is a litigant in person and appears to be exempt from Court fees. And what point is that making? The Defendant also wishes to keep any applicable costs to a minimum.

3) The Claim is not complex and the Defendant considers the final hearing can be dealt with within 3 hours.

[Shelley181146]

Hi Andy,

 

I really appreciate your guidance with this small matter.

I will tweak and get this off tomorrow to my contact at the CCMCC and await their response.

 

Naturally, will keep thread posted.

 

Cheers

Shelley

[AndyOrch]

Your very welcome Shelley.

 

Regards

 

Andy