Halifax Credit card is it to late?

[inneedofhelpman]

thanks again ims

 

probably as they very well wanted they want me to give up

 

having read the thread despite the inspiration i dont think i am in the right mental state to tackle yet another long pile of paperwork

 

1-0 to the halifax i think

[ims21]

Ok forget court and just stick with the ICO.

[inneedofhelpman]

thanks ims

 

sorry i am just very much in the mode at the moment with everything that i have put a fair amount of work in and getting very much nowere

 

thanks

[inneedofhelpman]

complaint logged with the ic 31/10/2012

[inneedofhelpman]

information received today!

 

letter exact same date as when i logged it with IC

 

anyway they took an age to supply so ill keep the complaint

 

claim sent today recorded for total of nearly £900.00

[inneedofhelpman]

reply received not a good one

 

 

will post up the letter i sent first then the reply received shortly afterwards

 

thanks in advance for any help on next step

[inneedofhelpman]

MY ORIGINAL LETTER

 

 

Mr XXX

XXXX

 

HBOS

Customer Relations

PO Box 548

Leeds

LS1 1WU

 

 

 

05/11/2012

 

 

 

 

 

Dear Sir/Madam

 

Account Number XXXX XXXX XXXX XXXX

 

Following media reports,and an investigation into credit card charges by the Office of Fair Trading,which I have recently been made aware of,I now understand,that the regime of fees which you have been applying to my account in relation to late fees, and over limit charges, are unlawful at Common Law,Statute and Consumer regulations,in that they do not, represent a genuine pre-estimate of your actual costs.

 

I would draw your attention to the terms of the contract which you agreed to at the time that this account was opened. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law,and in consideration of fair business practices and good faith.

 

It is my contention, that you have failed to operate my account in a manner condusive to the above,and have demonstrated a lack of fiduciary duty.

 

I calculate that you have taken £324.00 plus £561.30 which you have charged me in interest which total £885.30. Additionally,you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you, or was the result of impecuniositiy’ caused directly by the taking by you of penalty charges which you had applied to my account.

 

In recent years,Courts have been happy to accept claims for bank charges that exceed 6 years,whilst having regards to the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 © of the Limitation Act 1980.

Should county court action be needed I will be seeking to rely on this.

 

 

Therefore this letter requests a refund of all charges indicated including interest 14 days from the date of this letter.

I request that payment is made directly to me,by cheque,and that any refund in whole or part should not be allocated to any set off or third parties.

Should this occur,my claim will be deemed as unsettled and I will proceed to the Courts for recovery.

 

You now have 14 days to respond positively,and in the absence of this,I will put you on notice with a further 14 days,letter before action.

I trust this clarifies my position.

 

 

Yours Faithfully

 

 

 

JX

[inneedofhelpman]

heres part one

[inneedofhelpman]

heres the end of the letter

[ims21]

Attachment in post #33 unapproved because personal identifier showing.

 

It is now your move as to whether you are going to sue them. If you are then the next step is the "Letter Before Action".

[inneedofhelpman]

sorry ims im sure i got rid of everything?

 

do you have a link to the letter before action please?

 

thanks

[ims21]

The LBA is the same as your preliminary but headed "Letter Before Action" and the final bit amended to say that if they don't cough then you will issue without further recourse to them.

[inneedofhelpman]

ok thanks ims

 

ok to go to the same address?

[ims21]

As it is a letter informing them of legal action then I would send it to their registered office by recorded mail.

[inneedofhelpman]

thanks ims again

[inneedofhelpman]

14 days is up

 

have not heard a sausage

[ims21]

So you are now free to issue in court.

[inneedofhelpman]

thanks ims

 

have read around a lot on here

 

still dont feel prepared to do this yet

[inneedofhelpman]

any further advice appreciated

 

despite the reading around still quite unsure of what process to follow

 

thanks as ever

[ims21]

You have issued a preliminary and they didn't pay up.

 

You have issued a Letter Before Action and they didn't pay up.

 

fos will probably side with the lender on a charges reclaim.

 

You say you are not up to taking this further through the courts.

 

I can't see any other route open to you.

[inneedofhelpman]

 

thanks ims

 

i think i could handle the court process (with help from the thread as ever) but really need a guide to it

 

hard to get my head round sorry

[inneedofhelpman]

if anybody could offer me more guidance i would appreciate it

[ims21]

Have a read of this thread

 

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

 

It will give you a good insight as to the court process.

 

In this thread Barclaycard caved in before a hearing but you need to be prepared that Halifax may defend all the way and you may end up in front of a Judge to put your case.

 

The thing is that you must be prepared to go all the way if need be.

[inneedofhelpman]

thanks ims again

 

have spent the last two days reading that thread wow that is amazing

 

i have drafted something for the courts and will post this evening (i expect it is nowere near good enough but i have really tried)

 

thanks again

[inneedofhelpman]

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

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

 

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

 

 

Summary

 

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

 

6.The default charges were applied in accordance with the standard terms of The Agreement which 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 added to 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 was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were not advised.

 

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 damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable 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 Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement 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 contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

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

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

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

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(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.

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

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

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

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

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of 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 £[xxxx] between [ xx/xx/xxxx] and [xx/xx/xxxx ]. Particulars appear from Schedule 2.

 

18. On [ date of your preliminary letter ] 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 £[ xxxx.xx] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[xxxx.xx ] and interest of [£xx.xx] applied by the Defendant thereon.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[xxx.xx ], and at the daily rate of [ xx ] until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

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

 

Dated

 

 

 

Signed

 

 

 

 

 

 

Schedule 1

 

 

 

 

From Important Financial Information (April 2002)

 

1.1 We will decide your credit limit and tell you what it is. We may change it at any time and will let you know about any change. We will only reduce your credit limit if we have a good reason, for example, your circumstances change or because of our experience of the risks of lending.

 

 

1.4

We will send you a monthly statement, unless there has been no payments into or out of the account during that period and the balance on the account is nil. You must repay 2% of the amount you owe us, or £5, whichever is more.

 

4 KEY INFORMATION

 

4.1

We will charge:-

£12 each month in which a minimum payment amount that should have been paid remains outstanding.

£12 each month if, at any time during that month, you go over that credit limit.

£12 each time a direct debit, cheque or other item is not paid, including a cheque which you write.

 

 

 

 

Schedule 2

 

 

SCHEDULE OF CHARGES ATTATCHED.