Phil & Alison V Coop 2

[caro]

I would advise very strongly that if someone phones you up who you don't know and asks for personal security information that you don't give it. It could be anyone!!

[phatram]

Someone kindly told me the procedure for changing my POC, I can't find this info anywhere, so help please:confused:

I know I have write to the court and CO-OPS sols but if they dont grant permission to change it which court form do I need to use?

Thanks

[ukaviator]

You will need to fill in the N244 Court form here:

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

There is a fee to do this.

[phatram]

We've today received a letter from Fredricsons containing some bank statements from our current account and a letter stating we owe over £5k.

The £5k is a loan of which we are disputing the amount of interest,

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/71441-loans.html

 

but the Co-op have provided Fredricsons with information about our current account which they have no right to do.

It also seems Co-op have made "adjustments" to our current account and have closed it.

What should we do about the wrong info being passed to a DCA?

 

Edited November 26, 2009 by phatram

[vjohn82]

Posted on your other thread but have you got a Notice of Assignment?

[phatram]

Dont think we have.

[vjohn82]

Here's part of my recent defence to a CCJ.. the nature of assignment was in question (basically was the Claimant able to take legal action in their own name)

 

1. The Defendant denies the Claimant’s statement that the Account was assigned to the Claimant and puts the Claimant to strict proof thereof.

 

2. The Claimant asserts that a Notice of Assignment Exhibit VJ1 was sent by Barclaycard. The Defendant denies that Exhibit VJ1 was sent by Barclaycard and puts the Claimant to strict proof thereof.

 

3. Further, in respect of that which is denied, the Defendant draws to the Court’s attention that alleged Notice of Assignment Exhibit VJ1 and the Account Sale Agreement Exhibit VJ2 state the assignee is HFO Capital Limited and NOT the Claimant as was stated in the Particulars of Claim.

 

4. The Defendant asserts that in effecting statutory assignment from Barclaycard to HFO Capital Ltd, explicit Notice of Assignment must be given by writing under the hand of the assignor as required by S 136(1) of the Law of Property Act 1925, [the LPA 1925].

 

5. For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

 

6. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

7. The Defendant denies any valid Notice of Assignment of the alleged debt from Barclaycard to HFO Capital Ltd was sufficiently served on the Defendant and so the Claimant has no right of action.

 

8. The Defendant also denies any valid Notice of Assignment of the alleged debt from HFO Capital Ltd to the Claimant was sufficiently served on the Defendant and so the Claimant has no right of action.

 

9. Further, the Defendant asserts that the Notice of Assignment Exhibit VJ1 is not accurate in that the date of assignment is stated to be 5 June 2006 whereas the alleged instrument of Assignment, the Account Sale Agreement Exhibit VJ2, is clearly dated 20 January 2006.

 

10. Further, the Defendant asserts that the Notice of Assignment Exhibit VJ3 of the alleged assignment to the Claimant is invalid in that it is merely a generic template and does not provide any details of the alleged debt or recipient.

 

11. The Defendant asserts that by case law, if there is a failure of a Notice of Assignment to be accurate, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

[phatram]

[caro]

Decision time then.

 

1. Did you receive a copy of the defendant's application?

 

2. What did it say?

 

3. What did your POC say?

 

4. Is your claim under £5k?

 

5. Do you believe that you can put a case together that will convince a judge that you have a case that needs to be answered?

[phatram]

Our POC,

 

PARTICULARS OF CLAIM

 

1. The Claimant has an account XXX XXX XXX XXX with the Defendant which was opened on or around January 1983.

 

2. During the period XXXXXXXto XXXXXXX in which the Account was operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. 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 list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account 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 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) I find the charges listed on your statement are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Regardless of the wording of automated letters sent to me, these charges constitute a “penalty charge” as the amounts bear no relation to the actual charges incurred by you. I have been advised to remind you that such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorizes such a charge. [/font]

 

c) The Defendant concealed the nature of their charges and led the Claimant to mistakenly continue to pay the unlawful charges believing that they were lawful.

 

d) The Claimants right of action has been deliberately concealed from him by the defendant.

 

e) The Defendant continues to conceal both the nature of their unlawful charges and account holders rights to recover unlawful charges.

 

e) Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

5. Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of charges in the sum of XXXXX and any interest charged thereon, minus monies already reimbursed to the Claimant.

 

b) A declaration from this honourable Court that the term of the contract leading to the application of the charges is unenforceable;

 

c) Court costs; XXXXX if applicable.

 

d) Interest at the contractual Rate of 29.9% per annum as set out on the attached list of charges as of the

 

e) The Claimant also claims interest at a rate of 29.9%, from the date of each transaction toXXXXXX of XXXX XX, as set out in the attached list of charges. The Claimant further claims interest at the same rate up to the date of judgment or earlier payment, at a daily rate of 0.07% per day.[/font]

 

The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants unauthorised overdraft interest rate that would be applied under the terms of the above mentioned account.

 

f) Should the Court find that this interest rate is not applicable, then as an alternative the Claimant wishes to claim Section 69 County Courts Act interest as set out on the attached list of charges or at such rate and for such periods as the Court deems just.

 

 

The claim is for just over £7k. I'm still looking for their application.

Edited February 15, 2010 by phatram

[phatram]

[ukaviator]

Hi Phatram

 

What was the interest you signed for on your loan agreement?

 

Do you have one?

 

You are claiming 29.9% on all of the overdraft charges?

[phatram]

HI UK,

We aren't claiming anything back from our loan account. We are charging them 29% on the amount we are claiming on our 2nd current account claim. They've already paid out on claim 1 at that rate of interest. We have dropped the loan claim for now after the FOS found in COOP's favour.

[ukaviator]

Oh ok. . Have they demanded the loan to be repaid straight away?

[phatram]

All loan stuff is in the following thread as it was sold last year to Fredriccsons while FOS were investigating it.

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/235045-us-fredricsons-coop.html

[phatram]

As of today our claim is for £7000+ minus about £1400 already paid and at interest rate of 29%. Should I lower the rate to come in under the £5k limit for small claims? Now the new letters etc are on MSE

Bank Charges Court Guide: New legal arguments to take on the banks...

 

I fancy carrying on to see what comes of it.

I would have to change the POC, any advice anyone?

[caro]

Your call phatram on changing the interest rate. The POC are untested, and suggest S69 interest, but ML was always cautious about court action.

 

I like what Govan Law Centre are doing in Scotland, which could have ramifications for everyone, but there are no guarantees how that will turn out.

 

I guess you need to weigh up if you can afford to take the risk of losing a case if you may have to pay hefty costs. Not a risk I'd take but I'm not you.

[phatram]

Not going to carry on with this. Had a lot back from first claim with 29% int, not going to risk losing any of it.

[caro]

Is it worth changing to S69 interest to bring under £5k. Still a decent amount.

[phatram]

That would be less than the amount they refunded last year before they closed the account and sent all the details to Fredricsons to collect a non existent debt.

[phatram]

From Moorcroft

[phatram]

This saga continues here,

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?267034-Moorcroft-CO-OP