Brad v Cap One ***WON***

[redsonja]

Fab, make sure you stick to your timescale and then sock it to em!!! Oh...and dont forget to put your title on the N1 lol

[Brad Smith]

quick edit (thanks sonja), does this look better?

 

Dear Mr Udy

 

Thank you for your letter of 15th March 2007. I respectfully decline your offer and would therefore ask you to reverse the credit that has been placed on my account and once again, request that you refund all charges and interest imposed on this account, totalling £1,141.91.

I feel that you may have misconstrued the ruling made by the Office of Fair Trading; at no point did they decide that £12 per charge was a “fair amount”, merely the amount that could be imposed before they would intervene. Your charges still need to be a fair reflection of the costs that you have incurred, if £12 is indeed a fair reflection of these costs then I will need you to provide a full breakdown of how these are accrued. With this in mind, I now understand that the regime of 'fees' which you have been applying to my account in relation to exceeding credit limit, late payments and so forth are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £390 in charges, plus I am claiming a further £751.91 in contractual interest (compounded daily) at a rate of 21.99% APR thus being the interest that is currently applied to my account. This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. I am enclosing a copy of the schedule of the charges which I am claiming. I have already sent you a copy of this in my original letter of the 3rd March 2007.

 

I require repayment in full of this money and, if you do not comply fully within 14 days (5th April 2007) then I shall begin a claim against you for the full amount plus my costs and without further notice.

 

Yours faithfully,

 

Brad

[redsonja]

Perfect!

[Brad Smith]

ok, finally sent my LBA off. Wasn't happy about the previous one, so kept redrafting. I'm still not 100%, but what the hell, they probably won't read it anyway

[doo]

Will just print out one of their standard replies I expect Brad so don't hold your breath.

[redsonja]

Yes Brad, dont sweat it too much as we all get the same responses and you will just be dragging the process. The quicker your letters go, the quicker the days tick by as you will have to file at court and the sooner the better before any tactics change!

[Brad Smith]

I know, I'm bad at things like that though. Recently, my company has produced a big corporate brochure, costing thousands. After it was finished, I picked up a copy and immediately noticed they'd mis-spelt the word "acquisition", so it had to be reprinted.

 

Oops...

[redsonja]

lol, thats like something I would do. Im terrible for spotting spelling mistakes....I like to take my red pen to documents!

[Brad Smith]

ok guys...time is up and heard nothing...not even the standard "poke it, you're getting no more" letter that everyone else seems to get...feel all unloved!

 

I now have to file at court, but here's the problem...they've already refunded some money to my card, I haven't used it and requested that they take it back, but obviously they haven't. So when I come to file, do I just take that off the total, or do I need to take it off the earliest payments which will obviously impact on the interest and take a lot of calculating?

 

Cheers

[redsonja]

I personally, would file for the whole amount as you have made it clear that you will not accept the offer. If it went to court, you would have proof that you rejected the offer.

[Brad Smith]

cheers sonja, that's kinda what I thought, didn't want to mess it all up though

[redsonja]

Go get it filed. I still havent heard from them so looks like they wait till the last minute so the sooner you get it filed, the sooner you will get your money back.

[Brad Smith]

ok sonja will do...just looking for your thread so that I can plagiarise your Particulars of Claim.

[Brad Smith]

ok...it doesn't look like you've got a POC on your thread...quite selfish if you ask me...some people..."me..me...me...me", so I've had to nick Rouge's (with thanks to Bong too).

 

1. The Claimant has a Visa Credit Card Account xxxx xxxx xxxx xxxx ("the Account") with the Defendant which was opened on or around 12/12/00.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A schedule of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

 

c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss.In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

5. Interest claimed

 

a) The Claimant claims compound interest on the charges to the Account at the annual rate of 21.99%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

 

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.”

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

 

b) In the alternative to 5 a) , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

6. Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of penalty charges in the sum of £390.00;

 

b) Court costs;

 

c) Contractual interest at a rate of 21.99% per annum, compounded daily from the date of each transaction to 13/04/07 of £768.53, as set out in the attached schedule of charges.

 

d) In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 13/04/07 of £108.81 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.09.

[redsonja]

That was pretty much what I used too, bar the odd change.

Make sure you fill the N1 in correct lol

[Paintball]

Hey Brad

 

Just used the above POC today and with RedSonja's invaluable help sorted my N1 and filed it at local Court this afternoon.

 

Race you to the winning post?

 

P

[doo]

Hi Brad, wondered what had happened to you. Used the same POC too.

[redsonja]

Well done P. Nice to see you both near the finish line!

So there is 4 of us on our way to the winning post then...they have to file defence with me by 21st Apr so think Im slightly out in front....jeez, hope they dont make an example out of me to you all

[Paintball]

One WON, three to go ...

[Brad Smith]

think it may be you paintball...i'm gonna have to wait a week or two until i get paid...d'oh!!!

[doo]

Hi Brad, how is your claim going?

[Brad Smith]

Hi Doo...it isn't...been sooooooo busy....I still need to file it...I've got all the paperwork pretty much sorted, just want to make sure that I'm filing correctly etc.

 

How's yours going? Just the waiting game for you now?

[redsonja]

Brad you are soooooooooooooo naughty! sort yerself out!

[Brad Smith]

I know....i'm bad...i'm just a tad worried...wanna make sure that the local court is the right place to send it, so I'm trying to find somebody else that's used the Basildon court....excuses...excuses

 

As an aside, it's slightly refreshing to be called naughty by a woman without me paying for it first

[ukaviator]

I know....i'm bad...i'm just a tad worried...wanna make sure that the local court is the right place to send it, so I'm trying to find somebody else that's used the Basildon court....excuses...excuses

 

As an aside, it's slightly refreshing to be called naughty by a woman without me paying for it first

 

 

You don't get out much do you Brad? ...

 

No more excuses, get it filed and don't worry. They have'nt gone to court yet over charges.