POC for Unfair Charges+6yrs old - is this any good?

[zubo]

Hi all

 

Sent Amex an LBA... they have now completed their review of my complaint and claim that I had signed the agreement so agreed to the terms in them.

 

so ... I have prepared the following POC... I have added to POC others have used ... first by reference to the exception to the statute of limitations ... and then later .. to the claim for restitutional interest... can you please sanity check it and if necessary suggest any change.

 

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 xxxxxxx ("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.
(c) 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.

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 £105.00 between 24/06/2004 and 05/01/2007. Particulars appear from Schedule 2.

18. On 6^th March 2018 the Claimant demanded repayment of the sums wrongly applied, having only recently becoming aware of the mistake which the Defendant had made in applying these charges.

19. The claimant relies on the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 1.(c) of the Limitation Act 1980 in regards to this claim.
 

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

And the Claimant claims

(1) A declaration that the sums totaling £105.00 have wrongly been applied to the Account

(2) Payment of the said sum of £105.00.

(3) Interest in restitution based on interest applied by the Defendant at the rate of 14.98% per annum from the date of payment of the Charge to date in the sum of £621.04, and at the daily rate of 14.98% until judgment or sooner payment.

(4) Court costs of £60.00.

I believe that the facts stated in these particulars are true.

Dated
 

[zubo]

dx199uk or bankfidder ... any comments or advice please???

[dx100uk]

poc's are not my bag try andyorch

[zubo]

thanks dx...

 

andyorch can you comment please