HELP-Please! wubberchicken - new POCs entered

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Wow....you've been a busy bunny

Understand the new CCA bettr now, but the question remains is that can I use the Act's provisions as they were during the period my claim is for? It's very strange that an Act that allows itself to be amended so it still applies retrospectivley can impose a cut-off date?

I agree with the penalty issue has effectively ended, it even says quite clearly in Abbey's T & C's covering the periods of my claim that they are fees/charges for a service.

Quite what service they are providing when I haven't sufficient funds in the account warranting an Unpaid DD/STO charge?

When this charge is applied to SOGAS (supply of goods and services), it falls at quite a few hurdles to justify such a charge and service level.

Thoughts?
------------------------------- merged -------------------------------
Well I read the section in bold and the text above and below a few times to understand it.

This is my take....

Because of charges, I have incurred further charges because I haven't the funds available due to the previous months charges leaving me short for the next month so on and so forth?
------------------------------- merged -------------------------------
And ignore the CCA bit......the way I read it I got confused.

Basically, again my take is that it still applies to me so I can use the extortionate argument? :tinysmile_grin_t:

[Tools]

Re: HELP-Please! wubberchicken - POCs bit

Basically, again my take is that it still applies to me so I can use the extortionate argument? :tinysmile_grin_t:

Can you explain why you think that this still applies to your account, quote the wording from the act up here and justify your argument.....this is what you will have to do on your POC and on the day in court.

I want you to convince us all as if you were convincing a judge.

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

If this helps work it out lol

Extortionate credit bargains
137.—(l) If the court finds a credit bargain extortionate it may reopen the credit
agreement so as to do justice between the parties.
(2) In this section and sections 138 to 140,—
(a) “ credit agreement “ means any agreement between an individual (the “ debtor
“) and any other person (the “ creditor “) by which the creditor provides the
debtor with credit of any amount, and
(b) “ credit bargain “—
(i) where no transaction other than the credit agreement is to be taken into
account in computing the total charge for credit, means the credit agreement,
or
(ii) where one or more other transactions are to be so taken into account,
means the credit agreement and those other transactions, take together.
138.—(1) A credit bargain is extortionate if it—
(a) requires the debtor or a relative of his to make payments (whether
unconditionally, or on certain contingencies) which are grossly exorbitant, or
(b) otherwise grossly contravenes ordinary principles of fair dealing.
(2) In determining whether a credit bargain is extortionate, regard shall be had to such
evidence as is adduced concerning—
(a) interest rates prevailing at the time it was made,
(b) the factors mentioned in subsection (3) to (5), and
(c) any other relevant considerations.
(3) Factors applicable under subsection (2) in relation to the debtor include—
(a) his age, experience, business capacity and state of health; and
(b) the degree to which, at the time of making the credit bargain, he was under
financial pressure, and the nature of that pressure.
(4) Factors applicable under subsection (2) in relation to the creditor include—
(a) the degree of risk accepted by him, having regard to the value of any security
provided;
(b) his relationship to the debtor; and
(c) whether or not a colourable cash price was quoted for any goods or services
included in the credit bargain.
(5) Factors applicable under subsection (2) in relation to a linked transaction include
the question how far the transaction was reasonably required for the protection of
debtor or creditor, or was in the interest of the debtor.
73
139.—(l) A credit agreement may, if the court thinks just, be reopened on the ground
that the credit bargain is extortionate—
(a) on an application for the purpose made by the debtor or any surety to the High
Court, county court or sheriff court; or
(b) at the instance of the debtor or a surety in any proceedings to which the debtor
and creditor are parties, being proceedings to enforce the credit agreement, any
security relating to it, or any linked transition; or
(c) at the insistence of the debtor or a surety in other proceedings in any court where
the amount paid or payable under the credit agreement is relevant.
(2) In reopening the agreement, the court may, for the purpose of relieving the debtor
or a surety from payment of any sum in excess of that fairly due and reasonable, by
order—
(a) direct accounts to be taken, or (in Scotland) an accounting to be made, between
any persons,
(b) set aside the whole or part of any obligation imposed on the debtor or a surety
by the credit bargain or any related agreement,
(c) require the creditor to repay the whole or part of any sum paid under the credit
bargain or any related agreement by the debtor or a surety, whether paid to the
creditor or any other person,
(d) direct the return to the surety of any property provided for the purposes of the
security, or
(e) alter the terms of the credit agreement or any security instrument.
(3) An order may be made under subsection (2) notwithstanding that its effect is to
place a burden on the creditor in respect of an advantage unfairly enjoyed by
another person who is a party to a linked transaction.
(4) An order under subsection (2) shall not alter the effect of any judgement.
(5) In England and Wales an application under subsection (l)(a) shall be brought only
in the county court in the case of—
(a) a regulated agreement, or
(b) an agreement (not being a regulated agreement) under which the creditor
provides the debtor with fixed-sum credit not exceeding £750 or runningaccount
credit on which the credit limit does not exceed £750.
(6) In Scotland an application under subsection (l)(a) may be brought in the sheriff
court for the district in which the debtor or surety resides or carries on business.
(7) In Northern Ireland an application under subsection (l)(a) - may be brought in the
county court in the case of—
(a) a regulated agreement, or
(b) an agreement (not being a regulated agreement) under which the creditor
provides the debtor with fixed-sum credit not exceeding £300 or runningaccount
credit on which the credit limit does not exceed £300.
74
140. Where the credit agreement is not a regulated agreement, expressions used in
sections 137 to 139 which, apart from this section, apply only to regulated
agreements, shall be construed as nearly as may be as if the credit agreement were a
regulated agreement.
Miscellaneous

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Indeed, perfect.....

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

Re CCA 137-140 1974 before amendements...
1: Bank charges are not default charges
2: Bank charges are not interest
3: Bank charges will not be deemed grossly exhorbitant
4: The sections only apply to the terms when the agreement was made

The new CCA 140 doesn't apply as the agreement had ended before the provisions came in.


Re the bold bit - unless for some reason Abbey had allowed it to be operated in a way that was contrary to its practice. If any such case were to arise (and that seems unlikely), it should be examined in light of its own facts.

This would be if Abbey had allowed payments to be paid that weren't guaranteed payments that took you over your overdraft instead of bouncing them (eg if the paid an Abbey Loan taking you over where they should have returned it unpaid) There is provision in the terms for fees and charges to take you overdrawn so that isn't 'contrary to its practise'.


Re '' Because of charges, I have incurred further charges because I haven't the funds available due to the previous months charges leaving me short for the next month so on and so forth? ''

That demonstrates the imbalance under 5(1)

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

Also you mentioned SOGAS You are, I think, arguing that under s.15 Supply of Goods Act the cost of the 'service' is required to be reasonable. S.15 says that where no price is agreed at the time the contract is made, that a reasonable price will be implied.
15 Implied term about consideration

(1)Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.


(2)What is a reasonable charge is a question of fact.




The consideration for the service (of providing a bank account) is determined by the contract (it may vary depending on which services you use ie whether you use the instant overdraft request service or not but it is determined by the contract and terms and charging leaflets (as found by the supreme court) of course SOGAS hasnt been tested in court and could be a worthwhile addition but I personally don't feel that 15(1) can apply. What do you think ?

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

Also - a further point on misrep in addition to the bit I linked you to earlier.

from wiki.....

Misrepresentation is one of several vitiating factors which can affect the validity of a contract. A misrepresentation occurs when one party makes a false statement with the intention of inducing another party to contract. For an action to be successful, some criteria must be met in order to prove a misrepresentation. These include:

• A false statement of fact has been made,
• The statement was directed at the suing party and
• The statement had acted to induce the suing party to contract.

The letters came AFTER the contract was made. So you really are looking more at the terms presented to you before opening the account .... thus the terms which were looked at as being penal or not - despite being found not to be penal - were they termed in such a way as to misrepresent the charges as penalties which induced you into the contract because 'being penal' you didnt consider you would ever have to pay them as you had no intention acting outside the terms of the contract - THEN found them to be 'part of the overall price of the package of services' so being an integral part of the price - would, if you had known that before the contract was made, that have made you act any differently in agreeing the contract - and if so has it been to your detriment ?

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Ha ha.....talk about being the devil's advocate.

So how about the argument about the T & C's being non-negotiable? and putting the customer at a distinct dis-advantage with the charging regieme?

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

lol well you have to be don't you. I wouldnt be doing you justice by telling you everything hunky dory and it will be a risk free piece of pee taking this into court.

The non negotiated part is not an issue or in question - its a matter of fact since the Smith and SCoJ Judgments that the terms are part of standard form agreements and not negotiated. This in itself doesnt render them unfair, it just means you can consider / argue whether they are contrary to the “requirements of good faith”, and if they causes a “significant imbalance” in the party’s rights and obligations arising under the contract to the detriment of the consumer (you). In Sue's WS I added in a bit about the next bit which might help - ''One of the matters which the court will have to establish is that the bank has not dealt fairly and openly with its customers as regards the process by which the standard form contract were agreed by ,or otherwise became part of the contract, between the bank and its customers. Justice Smith declined to make a declaration on the issue of good faith [2008] EWHC 875 (Comm) and this issue was not considered by the Supreme Court .''


Have you read the OFT's original Particulars of Claim and Abbeys defence ? that might help too. AS will page 36 of http://www.oft.gov.uk/shared_oft/per...ly-and-def.pdf

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

1999 T&C's courtesy of Tutts Banks Terms and Conditions copies available 2006/2007/2008 - Legal Beagles


How you getting on with the POC's ?

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Thanks Ame

Yes I'm slowly re-compiling it to reflect my own personal circumstances and it's slow going.

I'm basically cutting the whole thing down to virtually 1-2 pages.....

I'll send you a copy privately when I feel it's nearly finished to get your estimable opinion :tinysmile_grin_t:

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

excellent,glad you are doing okay with things, if you do need any help along the way feel free to yell. I think people are having the most problems with the personal bits, the legal issue is relatively straightforward on its own, its when you try and fit it to how the bank actually behave with you it gets hard work.

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Indeed, I'll agree with you there Ame, thanks for the open offer, one I will partake if it's not inconvenient?

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

No probs. email admin@legalbeagles.info if you'd rather not upload anything here.

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Indeed let's keep the Bank's in the dark and unprepared by keeping it initially private