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Re: *worried* v Cap 1
POC -
Thank you
1.The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 07/2002 whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxx (“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 or
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, had a credit cheque returned or had a payment returned. The Charges are currently £12.00. Prior to 2006 the Charges were £20.00.
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 Defendant 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 published tariff of charges.
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 £120.00 between 02/2009 and 08/2009 Particulars appear from Schedule 2.
18. On 20th July 2009 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 £120.00 have wrongly been applied to the Account
(2) Payment of the said sum of £120.00 and interest of £2.14 applied by the Defendant thereon.
(3) The removal of any prejudicial information which the defendant bank may have passed to third parties in relation to the Accounts and in particular the removal of any default notice registered with any credit reference agency which was allegedly notified to the Claimant in 2009, since this was caused solely by the level of disproportionate penalty charges. The Claimant's request is made under the Data Protection Act 1998, section 14, which gives the power to the Court to order the removal of inaccurate personal data.
(4) 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 £2.14, and at the daily rate of £0.03 until judgment or sooner payment.
(4) Court costs of £30.00.
I believe that the facts stated in these particulars, comprising of x pages, are true.
Signed
Dated
From Terms and Conditions as at Oct 2007
4. Credit limit. We will determine the credit limit from time to time under this agreement and tell it to you in writing. Your credit limit and the amount of credit you have left are shown in your monthly statement. You and any extra cardholder can use the card, account or credit card cheques to make purchases or cash withdrawals and you, but not the extra cardholder, to make balance transfers which, added together and inclusive of interest and all other fees, charges and expenses, do not exceed your credit limit. If you go over your credit limit, you (and any extra cardholder) must not use the card or credit card cheques and you must immediately pay us enough to bring the outstanding balance within the credit limit.
8. Monthly payment. You must pay the outstanding balance by paying to us at least the monthly payment by the date stated in the monthly statement. The method of calculating the monthly payment is stated in the “Monthly Payments” section of “Key Financial Information”. Prompt payment is essential.
In addition, you must immediately pay any amount borrowed under this agreement in excess of your credit limit or which is overdue and the amount of any transaction made in breach of this agreement.
12. Other Charges and Default Charges. You must pay to us the ‘Other Charges’ and ‘Default Charges’ referred to in the ‘Key Information’ (as varied from time to time) and in our tariff of charges from time to time in force, as notified to you in writing from time to time. A cash withdrawal handling fee which is a percentage of the transaction (with a minimum amount) is payable on cash withdrawals. The current amount is shown in ‘Current Amounts of Other Charges and Other Features’. All charges may be varied as set out in section 18. We may require you to pay our reasonable charges for the following:
(a) Late or failure to pay charge: a charge if we do not receive your minimum payment by the due date shown on your monthly statement
(b) Returned payment charge: a charge if a cheque, credit card cheque, Direct Debit instruction or other method of payment is
not honoured.
(c) Overlimit charge: a charge for each statement period during which the outstanding balance is over your credit limit by £1 or
more.
(e) Returned credit card cheque charge: a charge for any credit card cheque we return unpaid for any valid reason.
(f) Administration charges: we may charge you for dealing with any special requests you make, including if you ask us:
● for information under the Data Protection Act 1998 where we are entitled to charge;
● to make a payment to your account through any express payment service; or
● to stop processing a credit card cheque.
You must pay to us all reasonable court costs to which we may be entitled against you, reasonable collection expenses weincur in collecting any amount you owe us under this agreement, reasonable costs incurred by us in trying to retrieve the cards and credit card cheques, and placing your account on a restricted list. Charges will be debited to the account when they are incurred and will form part of the outstanding balance.
POC -
Thank you
1.The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 07/2002 whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxx (“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 or
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, had a credit cheque returned or had a payment returned. The Charges are currently £12.00. Prior to 2006 the Charges were £20.00.
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 Defendant 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 published tariff of charges.
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 £120.00 between 02/2009 and 08/2009 Particulars appear from Schedule 2.
18. On 20th July 2009 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 £120.00 have wrongly been applied to the Account
(2) Payment of the said sum of £120.00 and interest of £2.14 applied by the Defendant thereon.
(3) The removal of any prejudicial information which the defendant bank may have passed to third parties in relation to the Accounts and in particular the removal of any default notice registered with any credit reference agency which was allegedly notified to the Claimant in 2009, since this was caused solely by the level of disproportionate penalty charges. The Claimant's request is made under the Data Protection Act 1998, section 14, which gives the power to the Court to order the removal of inaccurate personal data.
(4) 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 £2.14, and at the daily rate of £0.03 until judgment or sooner payment.
(4) Court costs of £30.00.
I believe that the facts stated in these particulars, comprising of x pages, are true.
Signed
Dated
Schedule 1
From Terms and Conditions as at Oct 2007
4. Credit limit. We will determine the credit limit from time to time under this agreement and tell it to you in writing. Your credit limit and the amount of credit you have left are shown in your monthly statement. You and any extra cardholder can use the card, account or credit card cheques to make purchases or cash withdrawals and you, but not the extra cardholder, to make balance transfers which, added together and inclusive of interest and all other fees, charges and expenses, do not exceed your credit limit. If you go over your credit limit, you (and any extra cardholder) must not use the card or credit card cheques and you must immediately pay us enough to bring the outstanding balance within the credit limit.
8. Monthly payment. You must pay the outstanding balance by paying to us at least the monthly payment by the date stated in the monthly statement. The method of calculating the monthly payment is stated in the “Monthly Payments” section of “Key Financial Information”. Prompt payment is essential.
In addition, you must immediately pay any amount borrowed under this agreement in excess of your credit limit or which is overdue and the amount of any transaction made in breach of this agreement.
12. Other Charges and Default Charges. You must pay to us the ‘Other Charges’ and ‘Default Charges’ referred to in the ‘Key Information’ (as varied from time to time) and in our tariff of charges from time to time in force, as notified to you in writing from time to time. A cash withdrawal handling fee which is a percentage of the transaction (with a minimum amount) is payable on cash withdrawals. The current amount is shown in ‘Current Amounts of Other Charges and Other Features’. All charges may be varied as set out in section 18. We may require you to pay our reasonable charges for the following:
(a) Late or failure to pay charge: a charge if we do not receive your minimum payment by the due date shown on your monthly statement
(b) Returned payment charge: a charge if a cheque, credit card cheque, Direct Debit instruction or other method of payment is
not honoured.
(c) Overlimit charge: a charge for each statement period during which the outstanding balance is over your credit limit by £1 or
more.
(e) Returned credit card cheque charge: a charge for any credit card cheque we return unpaid for any valid reason.
(f) Administration charges: we may charge you for dealing with any special requests you make, including if you ask us:
● for information under the Data Protection Act 1998 where we are entitled to charge;
● to make a payment to your account through any express payment service; or
● to stop processing a credit card cheque.
You must pay to us all reasonable court costs to which we may be entitled against you, reasonable collection expenses weincur in collecting any amount you owe us under this agreement, reasonable costs incurred by us in trying to retrieve the cards and credit card cheques, and placing your account on a restricted list. Charges will be debited to the account when they are incurred and will form part of the outstanding balance.
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