hell-v-shabby

[hellhasnofury]

Re: hell-v-shabby

Right best is to write a letter from scratch to the judge/court and copy to the bank stating categorically this is not a penalty charges claim.... can I see a copy of your POC please and any letters so far and we can work together on a letter. We wont APPLY for the stay to be overturned unless he specificallly requests a formal application.

We can also go through the FOS if you havent started that already ?

Hello Ame

Did I ever tell you how wonderful you are?

Got to shoot out to work now, but will do as you ask when I return.:beagle:

[Amethyst]

Re: hell-v-shabby

lol bless you hun.

Nudge me when you have posted later in case I miss it

[hellhasnofury]

Re: hell-v-shabby

Here is the defence in all its glory, nothing about the unauthorised direct debit they set up

Abbey’s Defence..##

a. Save as is specifically admitted in this Defence, the Defendant denies each and every allegations set out in the Particulars of Claim.

2. It is admitted that the claimant has a current bank account with the defendant, account no to be particularised (the “Account“).

3. At all times the account has been subject to the applicable terms and conditions (“Conditions”), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when the Claimant opened the Account. The Defendant will refer at trail to the full Condition but for the purposes of this Defence will refer to the following extracts:

(1) “You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable.”

(2) “An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed”.

(3) “If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transaction we are unable to process due to the lack of available funds in your account”.

4. Throughout the period that s/he has had the Account, the claimant receive a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).


5. Any overdraft facility on the Account was (and is) subject to the Conditions.

6. The claimant has overdrawn authorised over limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the defendant in accordance with its tariff of charges applicable at the relevant time. In accordance with the conditions. Such fees were debited to the account.

7. In view of the facts and matters referred to in paragraphs 3,4,5, and 6 above, the defendant denies that the amount of £598.78 or any other, amount was unlawfully debited to the account and the claimant’s claim for the repayment of that amount is therefore denied. The defendant denies that the claimant is entitled to claim interest of any amount.

8. The claimants contention that the said fees are unenforceable and /or penalty charges is denied. The fees reflect and are proportionate to the defendants administrative expenses incurred due to the claimant’s breaches of contract and are a genuine pre-estimate of the damage suffered by the defendant.


9. Further or in the alternative, even if the said fees are not proportionate to the defendant’s administrative expenses incurred (which is denied), the claimant remains liable to pay such fees as may be found to be proportionate and the claimant is not entitle to claim repayment of the full amount of each charge made to the account.

10. No admissions are made as to the amounts claimed by the claimant and the claimant is put to strict proof of the same.



:guyfawkes:

[Amethyst]

Re: hell-v-shabby

Ta - do you have your original POC pls



They are a bunch of dimwits arent they

[hellhasnofury]

Re: hell-v-shabby

Ta - do you have your original POC pls



They are a bunch of dimwits arent they

Hello Ame, I did the original poc on MCOL and then sent the court and the abbey a full poc.
Brief Details of Claim
Quote:
Money claim for return of penalty charges applied to the Claimants bank account by the Defendant

-----------------------------------------------------------------------------


Value:
Quote:
Charges £449.03
Overdraft Interest £8.87
Interest under s.69 County Courts Act 1984 £40.88
SAR fee £10
Court Fee £80.00

TOTAL £598.78

Plus interest pursuant to S.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £00.11 per day OR at such rate and for such periods as the court deems just.


Quote:

PARTICULARS OF CLAIM


1. The Claimant has an account . Account no: xxxxx Sort Code: xxxxx with the Defendant which was opened on or around 12/04/01.

2. During the period in which the Account has been operating the Defendant applied a unauthorised Direct Debit to the Account which resulted in 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) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £ 508.78 plus £10 SAR fee and any interest charged thereon;


b) Court costs;

c) Interest pursuant to section 69 County Courts Act of 8% until judgement or settlement at a daily rate of £0.11 as set out on the attached list of charges or at such rate and for such periods as the court deems just.

6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

I believe that the contents of these particulars of claim are true


Signed:

Date:

[Amethyst]

Re: hell-v-shabby

Ah haaaaaaa I see the problem....

now I am just thinking if its worth doing a new POC altogether and applying for the stay lift at the same time. Get rid of reference to UTCCR etc.

You need to ignore the penalty charges are disproportinate part - and concentrate on the fact that the charges just simply should NOT have been taken.

Any correspondance you have with the bank regarding this error - in setting up the unauthorised DD - do you have proof it was unauthorised, who was it with, any correspondance you have with the company the DD was paying ? etc.

Get all the info on here and we'll sort it.

[hellhasnofury]

Re: hell-v-shabby

Ah haaaaaaa I see the problem....

now I am just thinking if its worth doing a new POC altogether and applying for the stay lift at the same time. Get rid of reference to UTCCR etc.

You need to ignore the penalty charges are disproportinate part - and concentrate on the fact that the charges just simply should NOT have been taken.

Any correspondance you have with the bank regarding this error - in setting up the unauthorised DD - do you have proof it was unauthorised, who was it with, any correspondance you have with the company the DD was paying ? etc.

Get all the info on here and we'll sort it.

Hello Ame,

No I do not have any written correspondence regarding the unauthorised DD, apart from the bank statement showing refunds of 5 of them. I rang them when I received a template letter from them stating they would threaten court action is I did not pay this unauthorised overdraft. (there was no authorised overdraft on this account). and sorry to say I do not know where this letter has gone (probably in the bin, these were the days before I knew I had to keep all correspondence.).

There are reference no's regarding ge money.

[Amethyst]

Re: hell-v-shabby

Ok.

So we need to know

What was the direct debit for ? GE Money ?

You want a copy of the DD authorisation form from the bank and/or from GE Money ? (assuming they wont have it)

Was the DD set up on another account ?

Did the bank agree that the DD was set up in error ?

[hellhasnofury]

Re: hell-v-shabby

Hello,

Have finally managed to stay on the forum, without the computor crashing. I have now bought a new one:carrot:

Just want to update the thread. Paid the fee to send in a application to have the stay lifted.

I have now received a court date to apply to have the stay lifted. so thats good news. Now I just need to swat up on legalities.

[hellhasnofury]

Re: hell-v-shabby

Not good news I am afraid, Just returned back with a headache.

Application dismissed

The counsel they sent was indeed very polite and was not threatening in any way, although he did inform me that my application would not be successful

The Judge I feel had a masters in "looking down his nose at mere mortals" who were trying to see justice prevail. Nobody told me not to offer a handshake to him and he just took a step back and looked at me like I was something nasty on the sole of his shoe and told me to sit down. So that really unsettled me

He raised the points on my application, one by one. He did give me the opportunity to raise certain points in my skeleton arguement.

He would not accept my arguement that the defences were different, so therefore Abbey defence was for a breach of contract and not a fee for a service. He said that they were basically the same and that point was of no relevance.

I raised the point that the money taken was a benefit for a child and quoted the sections relevant, but he just stated was "the childs name on the account" I answered no, he dismissed it and moved to the counsel.

The counsel kept on stating the test case, the test case and the test case

I mentioned that the defendant had failed to provide comply with court instructions and the counsel stated that the defendant had not sent documents to me as there would have been many boxes to be sent. ha bl@@dy ha, again referring to the test case. I did mention that the instruction were given, before the date of the test case, but this fell on deaf ears.

I do think the judge had decided to dismiss the application before I opened my mouth and honest guys, I did give them a run for it.

He finished by saying, that although the application was not without merit, he could not allow the stay to be lifted, and the application was dismissed

Well back in the queque with everybody else. After today I am of the opinion that justice does not prevail. The law is an ASS

Gone off to lick my wounds:tinysmile_cry_t:

[Amethyst]

Re: hell-v-shabby

You dont happen to have the application you used handy to put on here, just for noseyness purposes. The charges shouldn't have been taken in the first place so its not really a penalty charges situation unless there was other stuff too. Kind of lost track on your case as you havent posted for a while.

Anyway, good for you for attending and arguing your case xxx Sorry it didnt work out how you had hoped.

[TUTTSI]

Re: hell-v-shabby

Hells I am so sorry that you were not able to have your stay lifted. We can only hope that the result of the test case is not to far off now and that it will be favourable. Keep your pecker up hun.....
All the best
DSxx:grouphug:

[Happyolddog]

Re: hell-v-shabby

Hi Hell,

At least you tried to get the a stay lifted, bad luck but hopefully the OFT case will be at an end soon and you can get hold of your savings then.

Best wishes,
Hod..Liam..

[TUTTSI]

Re: hell-v-shabby

Hi Hells

Nice to see you back on site.

I am not sure how far you got with your Abbey Claim!

The FSA new waiver rules for hardship which were updated in July have been bringing in many sucsess's especially if you fall with the current rules.

If you pop into the new hardship section on this site you will see the rules and if you fall into this catorgory ask Budgie to move your thread. I recently received 65% of my claim which was refunded by Abbey under these rules.

All the best

xx