Ammani V Cap1

[Ammani]

Hi there, i have a claim in court, for credit card charges, which was stayed because of the OFT Test case.

I requested the stay be lifted but it was overuled by the DJ.

Now that the test case is finished, and the stays may be lifted, how do i proceed with my claim?

Do i need to renew my POC? it was nearly 2 years ago, that the claim was put in court. And how would i go about amending my original POC? I know i need to use a particular form, but not sure which one, and hot to go about it..

Any advice would be greatfully appreciated.

I would also like to say a big thank you to everyone on this site, for all the hard work that they do, in helping others, they are to be commended.

Many thanks.

Ammani.

[Amethyst]

Re: What needs to be done now?

well, as you know, your claim shouldnt have been stayed anyway. But yes it should certainly be lifted now.

To amend your POC you use form N244. We would need to see what you entered as your original POC tho in order to advise if it requires changing.

Credit card claims are based in the main part that they are penalty charges. The Test Case on banks does not read over to credit card charges in this respect although there may be areas of the utccr where a read across may be made.

if you can post up your POC that would be of use.

Also if you can edit your post to remove the CAG popup text it'd be appreciated as its a bit misleading now (its okay it happens a lot).

[Ammani]

Re: What needs to be done now?

Hello Amethyst,

thank you kindly for your speedy reply, its most greatfully appreciated.

Yes i knew it shouldnt have been stayed but the judge, wouldnt listen when i explained that the OFTcase had no bearing on credit card charges!

I will dig out my paperwork and put up a copy of my Poc.

I have had more charges since the claim was put in, how would i go about adding these to my claim to?

Thanks again for your most valuable help.

Ammani

[Amethyst]

Re: What needs to be done now?

yes you can add those to your claim, if you produced a spreadsheet initially you will need to add the new charges to the end of this and when you amend your POC this will form part of the amendments. It will also be an application for a stay lift, as its not bank charges I don't think it would be lifted by the credit card company.

look forward to seeing the POC.

[TANZARELLI]

Re: What needs to be done now?

Very annoying that it was stayed in the first place and that your application to have it lifted was rejected grrrrrrrrrr grrrrrrrrr and grrrrrrrr some more.

I will have a read of the poc when you post it up also.

[Ammani]

Re: What needs to be done now?

Thanks TANZARELLI,

i know, and i had added to my claim a statement explaining this, but it was ignored, as was my request to remove the stay!

Having just spoken to the court, i was told by the clerk, that i was mistaken about this, and that the judge knew better, as she was far more qualified than myself!!

I was also told that the banks had a judgement in their favour now, and would not be paying credit card fees, to anyone. I pointed out, that this was not the case, and that the banks had not won the case as they seemed to understand.

It would seem that the court employees are all being misinformed as to what has actually happened in the OFt test case.

I was also told that stays have not and will not be lifted, until they have been told otherwise. So if i want to proceed i need to contact the court saying so.

Its so frustrating

[Ammani]

Re: What needs to be done now?

Here is my POC.


Brief Details of claim.

The Claimant has had an account with the Defendant, Acc Noxxxxx , from xxx to xxx . During this period, the Defendant had debited numerous charges to the account, in repect of purported breaches of contract, on the part of the Claimant. The Claimant contends that these charges are punitive in nature, and that the contractual provision that permits the Defendant to levy such charges is unenforceable, by virtue of the Unfair Contact Terms in Consumer Contract Regulations(1999) the Unfair Contract Terms Act (1997), and the common law.

In remedy, the Claimant seeks return of the amounts debited in repect of charges, in the sum of xxxx and interest under section 69 of the County Courts Act 1984.

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xxxxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx.("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 2.25% 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. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £xx.

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 £xxxxx between xxxxxx and xxxxxxxx. Particulars appear from Schedule 2.

18. On (date of your preliminary letter) 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 £xxxxx have wrongly been applied to the Account

(2) Payment of the said sum of £xxxx and interest of £xxxx applied by the Defendant thereon.

(3) 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 £xxxxx, and at the daily rate of [ xx ] until judgment or sooner payment. (4) Court costs of xxxx.

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.

[WendyB]

Re: What needs to be done now?

Just a quick question - who is the Credit Card company?

Oh yes and welcome to Beagles - I seem to remember you from CAG?

[Budgie]

Re: What needs to be done now?

Interesting !

Yes, I too would like to know the Company you are claiming against and also the County Court at which you failed the claim. There are a few courts that were routinely staying credit card claims.

Out of interest could you possibly also post up your stay lift application, just to see how you argued against the stay.

We will try our best to assist you in getting this claim resolved.

Budgie

[Ammani]

Re: What needs to be done now?

Hi Wendy B and Budgie.

Thanks for your replies. Its Capital One.

Yes i am also a member of CAG.

The County Court was Maidstone, in Kent.

I will post up argument for stay, just need to get my scanner working!

[Budgie]

Re: What needs to be done now?

No problem Ammani, will look forward to seeing it.

Capital One, my favourites, oh goody, LOL

Will suggest a strategy once have seen your stay lift letter !

Roughly what is the total of all charges ( old ones on the claim plus additional since stay )?

and do you have a balance on the account, if so how much roughly ?

Budgie

[Ammani]

Re: What needs to be done now?

xxxxxxxxxx Claimant.
-and-

Capital One Services Inc. Defendant.
　
I strongly object to the proposed order of a stay in respect of the claim detailed above upon the following grounds;
　
Human Rights.
　
It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

"1. In the determination of his civil rights ... everyone is entitled to afair and public hearing within et reasonable time.
　
　
It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their web sites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed fuither to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 - 3 years Of perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.
　
　
The Overiding Objective.

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a sm'all claims track case involving a reletively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.
　
Balance of convenience
The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and wellresourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. I will remain at risk of such action despite the fact that my remedy has been placed on at indeterminate hold.
　
Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I wouldJlave to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.
　
　
It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.
　
　
　
　
　
　
Dear Sir/Madam,
　
I respectfully object to the proposed order of a stay in respect of the claim
xxxxxxxx vs. Capital One Services Inc. I respectfully ask that it be removed on the following grounds;
　
　
This claim is in respect of Charges applied to my credit card account. My claim is notconcerning the recovery of current bank account charges. This claim is therefore not effected by the outcome to the OFT test case and should be allowed to proceed to its natural conclusion through the courts.
　

Credit Card charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Credit card charges could potentially be decided solely on the "penalty" issue of common law, without reference to the UTCCR which the OFT case focuses on. Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provision in Director General Fair Trading V First National Bank plc (2002) 1 All ER 97
　
　
Yourse Sincerely.

------------------------------- merged -------------------------------
Old and new charges, plus 8% interest, add up to £494.82. It would have been more, but Capital one, refunded £50 to my account, in May 06 and March 07.

I have a balance of £180. My credit limit is only £200.

[Budgie]

Re: What needs to be done now?

OK, Thanks Ammani,

Pretty much as I thought it would be.

Did you just send this to the Court or did you try anything with Capital One before you applied to the Court for the stay lift?

I suggest we try it again, now that the test case has finished it should be quite easy, but we will do so via a devious and sneaky method so as to try and secure a speedy resolution to your claim, maybe without needing to get the stupid stay lifted at all.

Let me know the values requested in my last post. I will work on this over the weekend and post up a full strategy for you.


Have just seen your figures, thank you.

OK please leave it with me over the weekend. One thing you could do is put all of your charges, old and new, into a spreadsheet.

You can find a spreadsheet here ......... Legal Beagles

Do not add any personal details onto the spreadsheet if you post it up on the thread. If you prefer you can PM it to me.

[Ammani]

Re: What needs to be done now?

Thank you most kindly Budgie, your help is greatfully appreciated.

Amount claimed on claim form was £324.00 plus interest of £42.05 = £366.05.

Since then i have had £ 120 more charges added. And interest is £86.82 = £494.82.


I tried to come to a resolution with Capital One, but they didnt want to know.

[Budgie]

Re: What needs to be done now?

Just another quick question.

Do you have copies of all your statements?