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[MSE Jenny]

This is the discussion to link on the back of Martin's "The case of Tom Brennan and bank charges leaves me in two minds." blog. Please read the blog first, as the discussion follows it.

Read Martin's "The case of Tom Brennan and bank charges leaves me in two minds." Blog

[crazy_guy]

This case of Brennan seems very interesting - exemplary damages are to punish the defendant for fraud or wilful misconduct generally but to be honest i dont see the Courts accepting that the bank were either of these things. As he's already recieved the charges back the Court may not even venture into the realm of the charges but purely decide on the exemplary charges which i dont think will wash

[computerwoman]

I don't get it? If they gave him his money back, why is he taking it further, and if he loses his claim will that effect other people putting claim's in the future, if he was trying to clear his good name, eg having been charged bank charges has this put a black mark against his name with credit firms, so in future he would be classed as a high risk by credit firms and then he cannot get good credit from anyone, so winning this case put's him back into good credit where by he can get a good deal on a mortage/bank loan/credit cards, etc, what is his game,
curious
cw

[Robyn Banks]

There are 2 points to discuss here.

1 It is accepted that what the Banks and others have been doing is illegal. It really is not sufficient just for them to pay back what they have taken from customers' accounts. If anyone else were caught breaking the law or directing a company that broke the law, they should expect prosecution and punishment.
Why should banks or their directors be any different?

2 They have profited by lending our money that they stole (stealing is defined as taking something to which they have no right with the intent of permanently depriving the rightful owner) to the tune of 18%. I can see no reason why they should be allowed to profit from their illegal activities. A drug dealer would forfeit the profits from his/her illegal activities.
Why should banks be any different?

[j-baby-scotland]

Tom is taking it to the extreme...
Much good has been done regardless of the outcome.
He is a barrister, not without brains, his choice.
Not all have his brains, Martin steps in there...if you ask me...

[Markyt]

Originally Posted by computerwoman

I don't get it? If they gave him his money back, why is he taking it further,

Publicity - he wants to make a name for himself, which will lead to a partnership in a big firm.

[Mark7799]

Originally Posted by Robyn Banks

There are 2 points to discuss here.

1 It is accepted that what the Banks and others have been doing is illegal. It really is not sufficient just for them to pay back what they have taken from customers' accounts. If anyone else were caught breaking the law or directing a company that broke the law, they should expect prosecution and punishment.
Why should banks or their directors be any different?

It has not yet been proven in a Court of Law that Nak charges are illegal. In any case, I believe that the argument is not that charges are illegal per se but that it is the AMOUNT of such charges - this topic has been done to death on many other threads elsewhere. Also, if they were illegal - that would surely be a criminal matter rather than one for the Civil Court?



2 They have profited by lending our money that they stole (stealing is defined as taking something to which they have no right with the intent of permanently depriving the rightful owner) to the tune of 18%. I can see no reason why they should be allowed to profit from their illegal activities. A drug dealer would forfeit the profits from his/her illegal activities.
Why should banks be any different?

Where does your 18% figure come from?

[Robyn Banks]

Originally Posted by Mark7799

Where does your 18% figure come from?

The 18% comes from Martin's Blog but in reality the actual rate would depend on what is charged by the illegal charge taker. In any event, whatever the rate of interest, it belongs to the rightful owner of the money.


You are correct to point out that it is the amount of the charge that is illegal not the fact that there is a charge. However that does not remove the illegality.

You are also correct to point out that the law governing the level of the charges is in the Civil part of our code but, the taking of another person's property with intent to permanently deprive without that person's freely-given consent, is stealing. So far as I can see these illegal charges fit that description.
Also the Banks etc have been at pains to deceive us about the legal status of their charges and that deception has two effects. It removes the 6 year limit (see Limitations Act for timings) and turns the theft into fraud.

Which bit of illegal would you prefer?

There are any number of examples of large organisations getting away with acting illegally despite the "authorities" knowledge of their actions. The fact that no prosecuting agency has acted on the basis of theft or fraud or any other criminal charge does not change the situation.

[mary eastwell]

Re compensation for bank charges. My son was suffering depression but still managing to get up and go to work and just about pay his bills. One error in his banking resulted in a returned direct debit. The resulting charges meant more returns, more charges, you know the score! 5 years later, following complete downward spiral, alcohol abuse etc. he has finally "pulled himself together", paid off his debts and, thank God, stopped drinking. During this 5 years he totally let himself go (although somehow managed to keep working). His flat became almost uninhabitable, he went through a period with no water (because he couldn't afford to repair a leak) No gas or electric as they had been disconnected and more rubbish than I have ever seen in one place! He hid this from me so as to not upset me although I obviously knew he was drinking and not caring for himself. He got too scared to open letters so left them by the front door in a heap. All this was set off by unlawful bank charges. I believe he would have recovered from his depression in time had this extra pressure not been placed on him.

[Headieboy]

Originally Posted by Robyn Banks

You are correct to point out that it is the amount of the charge that is illegal not the fact that there is a charge. However that does not remove the illegality.

The charges haven't been legally challenged in court as yet so it's all subjecture as to their legallity. As none of the banks are going to come out and tell us how they arrive at the charge levied, we don't know if they are legal. Remember, it's all to do with how much it costs the bank to pay the cheque or direct debit and send the letter. The banks say the charges are legal, others say they're not.

Whilst I agree that the charges are excessive, you could also argue that you are stealling the banks other customers money by exceeding your overdraft limit. I think Tom Brennan is either very brave or very foolish. The bank has made several offers (I don't believe it has paid him any money as he has refused them) to settle, the last offer was more than he was charged originally plus interest and I think that the courts will side with the bank. According to the report I saw, this will make Tom bankrupt which will prevent him from practicing law. Even if he wins, a lot of banks will not be willing to deal with him in future.

[expat_mike]

I think some people have missed the point over this one. The whole purpose of exemplary charges is to (a) deter banks from continuing their quasi-legal activities and (b) give some renumeration for the time and stress caused to an individual by their actions. To use an example, if I walked into a bank and stole £50,000 from them, was caught and handed it straight back, I would still be charged with theft. Banks have been taking money from personal accounts for many years without authority, either mistakenly or illegally and should be held to account in a similar manner. The only appropriate action against banks is exemplary charges to reimburse the account holder over and above straightening their account out. After all, customers are charged for similar mistakes made by them and will accept the charges providing they're not excessive, and the same thing should happen in reverse. How many people have spent time and money sorting out a banks errors and all that happens is you finally get your money back weeks later and a limp apology if you're lucky. I see no reason for not having a scale set of charges that a customer receives automatically when a bank deliberately or accidentally mess's up and causes stress and/or temporary financial trouble to one of its customers.

[Robyn Banks]

Originally Posted by expat_mike

I see no reason for not having a scale set of charges that a customer receives automatically when a bank deliberately or accidentally mess's up and causes stress and/or temporary financial trouble to one of its customers.

I thought you might like this. I have no idea if it true but nice to think it just might be.
****************

A 98 year old woman wrote this to her bank. The bank manager thought it amusing enough to have it published in the New York Times.


Dear Sir,

I am writing to thank you for bouncing my check with which I endeavored to pay my plumber last month.
By my calculations, three 'nanoseconds' must have elapsed between his presenting the check and the arrival in my
account of the funds needed to honor it. I refer, of course, to the automatic monthly deposit of my Social Security check, an arrangement which, I admit, has been in place for only eight years.
You are to be commended for seizing that brief window of opportunity, and also for debiting my account $30 by way of penalty for the inconvenience caused to your bank.

My thankfulness springs from the manner in which this incident has caused me to rethink my errant financial ways.
I noticed that whereas I personally attend to your telephone calls and letters, when I try to contact you, I am confronted by the impersonal, overcharging, pre-recorded, faceless entity which your bank has become.

From now on, I, like you, choose only to deal with a flesh-and-blood person. My mortgage and loan payments will therefore and hereafter no longer be automatic, but will arrive at your bank by check, addressed personally and confidentially to an employee at your bank whom you must nominate.

Be aware that it is an offence under the Postal Act for any other person to open such an envelope. Please find attached an Application Contact Status form which I require your chosen employee to complete in triplicate. I am sorry it runs to eight pages, but in order that I know as much about him or her as your bank knows about me, there is no alternative.

Please note that all copies of his or her medical history must be countersigned by a Notary Public, and the mandatory details of his/her financial situation (income, debts, assets and liabilities) must be accompanied by documented proof.

In due course, I will issue your employee with a PIN number which he/she must quote in dealings with me.

I regret that it cannot be shorter than 28 digits but, again, I have modelled it on the number of button presses required of me to access my account balance on your phone bank service. As they say, imitation is the sincerest form of flattery.

Let me level the playing field even further. When you call me, press buttons as follows:

1-- To make an appointment to see me.
2-- To query a missing payment.
3-- To transfer the call to my living room in case I am there.
4-- To transfer the call to my bedroom in case I am sleeping.
5-- To transfer the call to my toilet in case I am attending to nature.
6-- To transfer the call to my mobile phone if I am not at home.
7-- To leave a message on my computer (a password to access my computer is required.
A password will be communicated you at a later date to the Authorized Contact.)
8-- To return to the main menu and to listen to options 1 through 7.
9-- To make a general complaint or inquiry, the contact will then be put on hold, pending the attention of my automated answering service.

While this may, on occasion, involve a lengthy wait, uplifting music will play for the duration of the call.

Regrettably, but again following your example, I must also levy an establishment fee to cover the setting up of this new arrangement.

May I wish you a happy, if ever so slightly less prosperous, New Year.

Your Humble Client,

[Robyn Banks]

Originally Posted by Headieboy

The charges haven't been legally challenged in court as yet so it's all subjecture as to their legallity.

I think we're splitting hairs here. As you confirm later in your post, you agree that they are excessive i.e. more than it costs the bank. They are therefore by definition illegal.

As none of the banks are going to come out and tell us how they arrive at the charge levied, we don't know if they are legal. Remember, it's all to do with how much it costs the bank to pay the cheque or direct debit and send the letter. The banks say the charges are legal, others say they're not.

Whilst I agree that the charges are excessive, you could also argue that you are stealling the banks other customers money by exceeding your overdraft limit.

To be guilty of stealing requires that I remove, with the intent to permantly deprive, the the money without the consent of the owner . There was no lack of consent (the bank paid the money and the owner had given permission for its use by the bank) and no permanent deprivation thus it was not stealing.

I think Tom Brennan is either very brave or very foolish. The bank has made several offers (I don't believe it has paid him any money as he has refused them) to settle, the last offer was more than he was charged originally plus interest and I think that the courts will side with the bank. According to the report I saw, this will make Tom bankrupt which will prevent him from practicing law. Even if he wins, a lot of banks will not be willing to deal with him in future.

There is a potential problem with banks refusing to deal with certain people. Having a bank account is a necessary part of today's world. I believe that we may have to consider making access to reasonably priced banking facilities a legal right.

[Robyn Banks]

Originally Posted by mary eastwell

Re compensation for bank charges. My son was suffering depression but still managing to get up and go to work and just about pay his bills. One error in his banking resulted in a returned direct debit. The resulting charges meant more returns, more charges, you know the score! 5 years later, following complete downward spiral, alcohol abuse etc. he has finally "pulled himself together", paid off his debts and, thank God, stopped drinking. During this 5 years he totally let himself go (although somehow managed to keep working). His flat became almost uninhabitable, he went through a period with no water (because he couldn't afford to repair a leak) No gas or electric as they had been disconnected and more rubbish than I have ever seen in one place! He hid this from me so as to not upset me although I obviously knew he was drinking and not caring for himself. He got too scared to open letters so left them by the front door in a heap. All this was set off by unlawful bank charges. I believe he would have recovered from his depression in time had this extra pressure not been placed on him.

This is a dreadfully sad story except that the person eventually pulled himself (perhaps with the help of others) out of the mire.
It is unfortunately not a unique story and not confined to banks. For example, how many men have taken their own lives after being "processed" by the Child Support Agency.
Where once you talked to a human when talking to your bank manager now you talk to a machine that may or may not have a humanoid front-ending it.

[Mark7799]

Originally Posted by Robyn Banks

I thought you might like this. I have no idea if it true but nice to think it just might be.
****************

A 98 year old woman wrote this to her bank. The bank manager thought it amusing enough to have it published in the New York Times.


Your Humble Client,

This has been doing the rounds for years and I've seen it on at least three other occasions on these boards.

[Robyn Banks]

Originally Posted by Mark7799

This has been doing the rounds for years and I've seen it on at least three other occasions on these boards.

Well I'm sorry to have subjected you the the pain and indignity of seeing it again.

[sarahbrenny]

Thanks Robyn for posting the letter (again!) as I really enjoyed reading it.

I think that banks have found it so easy to plunder their customer's accounts, so unashamedly, precisely because they have created such a great distance between themselves and their customers. The letter, that you've kindly posted again, highlights how bankers have successfully created that distance.

[derrick]

It is my understanding that Tom Brennan is pursuing this,(despite having been made several offers), to force the bank before a court to explain their charges, as up to now none have them have had the b**lls to appear before the court to justify their charges, choosing to pay rather than attempt to prove their case,and if he gets them before the court and wins, it will/should prove in law that the banks have been acting illegally, so good luck to him in his quest.

[Robyn Banks]

Originally Posted by derrick

It is my understanding that Tom Brennan is pursuing this,(despite having been made several offers), to force the bank before a court to explain their charges, as up to now none have them have had the b**lls to appear before the court to justify their charges, choosing to pay rather than attempt to prove their case,and if he gets them before the court and wins, it will/should prove in law that the banks have been acting illegally, so good luck to him in his quest.

Derrick you have, in my view, neatly atriculated one of the reasons the Banks are reluctant to defend their charges. If they are proved to have been acting illegally they lay themselves open to prosecution and Government will have to take some action against them.

As it is neither the FSA nor the Banking Ombudsman is interested. I complained to them both about the Alliance and Leicester. The FSA sent back a load of meaningless tripe that avoided the substance of the complaint and the Banking Ombudsman ignored my complaint entirely. I can only presume therefore that both of these organisations, supposedly there to protect our interests, are quite content with illegal activities by the banks. One might wish to ask why?

Another reason that the Banks do not defend their charges may be that the amount they are having to pay back pales into insignificance compared to the amount they are raking in. That may however change as more and more people get wise.

[derrick]

Originally Posted by Robyn Banks

Another reason that the Banks do not defend their charges may be that the amount they are having to pay back pales into insignificance compared to the amount they are raking in. That may however change as more and more people get wise.

Or Tom Brennan gets his day in court and wins.