Bank Charges Court Guide discussion

[MSE Wendy]

This thread is specifically to discuss the content of the new updated

Bank Charges Court Reclaiming guide

This is the first version of the Court guide since the Supreme Court test case result. Much is still uncertain. Please make suggestions & ask questions and we'll monitor the feedback.

Please note if you want to discuss 'the rights and wrongs of reclaiming charges' this isn't the place - this is a practical thread instead do it here

[esmerellda]

Well done MSE for getting this up and for the guidance with it being so clear.

Just a wee note to potential Claimants - please make sure you read the guide alongside the templates. Do not just print off the template and send - you MUST personalise it with your own specific examples and instances of unfairness. Take note specifically of the costs risks.

Good luck to all xxx

[lawscot]

Good News from the Scottish Courts. The Sheriff Court (Scots County Court) has allowed a case, Sharp v Bank of Scotland, to be amended to include a claim under S140A of the Consumer Credit Act and has fixed a full hearing called a Proof (ie a civil trial) to proceed on 11 June in Glasgow Sheriff Court. The case is being sponsored by the Govan Law Centre.

The burden will be on the Bank to prove that the charges are fair/ not excessive

Will the Bank settle this out of court??

Watch this space then......

see Govan Law Centre web site and also

Scottish Courts Administration web site

[hicskis]

In my opinion they will not settle - they will fight - and on the current arguments - will win.

[Premier]

As I understand it, the case in the Scottish Court simply allows a case that was otherwise about to be struck out (if not already done so), to be heard based on a revised POC - that's a long way off winning it.

Also, I'm not sure 100% sure of Scottish Law, but would be surprised if if differed greatly to that in England & Wales where it is the responsibilty of the claimant to prove their case, rather than a defendant being presumed guilty until they prove themselves otherwise.

The court allowing the claimant to revise their POC is not the same as the court having already found in favour of the claimant unless the defendant can prove otherwise. As I understand it, it simply means there may on the face of it be a case to answer, but it is still for the claimant to prove.

[esmerellda]

Also, I'm not sure 100% sure of Scottish Law, but would be surprised if if differed greatly to that in England & Wales where it is the responsibilty of the claimant to prove their case, rather than a defendant being presumed guilty until they prove themselves otherwise.

Under CCA unfair relationship the burden of proof is on the defendant in this case so long as the unfair relationship is properly alledged by the claimants.

The court allowing the claimant to revise their POC is not the same as the court having already found in favour of the claimant unless the defendant can prove otherwise.

Agree absolutely - there is a very long way to go on this case.

[hicskis]

Correct the burden of proof is on the Defendant - this does not mean that the Defenant will not be able to prove it.

The significance with this case lies more to do with what happens if the bank wins the first round?

A. It will kill this approach stone dead.

[esmerellda]

It will, so I think important this is tested early on before hundreds of people put the same claim into court based off the back of a misunderstood story which only means that someone has been allowed to enter new particulars of claim arguing the CCA. Leave the publicity and boosting of the campaign until someone actually succeeds with the new arguments.

I've seen over on CAG people are thinking of using the case in scotland as a persuasive authority ?? Quite strange.

[hicskis]

By esmerellda:
"I've seen over on CAG people are thinking of using the case in scotland as a persuasive authority ?? Quite strange."

Not really - there's one person i've seen today who wants to fight for his bank charges back and has asked someone to supply the address of his bank for him to write to...

[natweststaffmember]

I would add to the Scottish claim bit to simply say that they have not got the full picture on their website for obvious reasons, ie that it is still to be tested in court.

With regards to the guide itself, I understand the need to put the guide in place and people have to think long and hard about going forward currently. You have got to feel 100% comfortable arguing your circumstances based on the newer arguments. Do not expect the banks to simply pay out. That time is OVER. Be careful and Good Luck no matter what decision you decide to take. We've got this far in the Bank Charges Campaign and we are still prodding so to speak.

[davidgmmafan]

Ok so we all know the banks should at least consider refunding charges where the account holder is in hardship but there are two other points made in the section explaining what the FOS can look at. I've included them below so there is no misunderstanding:-

• Your charges are disproportionate
  Say you dipped into your unauthorised overdraft by £2.50 and incurred a £35 charge, it’s utterly disproportionate. The Ombudsman may look at this, though if you regularly do so, you’re unlikely to succeed.
• Snowballed charges
  This is the nasty situation of ‘charges on charges’ which traps people so they can’t clear their overdraft before new charges are added on. It’s one of the reasons many people can reclaim £1,000s. Though, of course, if this happened you’re likely to be in hardship too

The first one I really don't understand because this was the whole reason for the campaign. Whether its one charge or a thousand the charge is disproportionate. Is there a source on this? I don't see why the FOS wouldn't reject such a claim flat, if someone goes over by 1p and gets charged a fortune a common sense solution would be for the bank to waive the first charge. However the current situation is that, however unfair we feel the above is, the bank can do whatever it likes.

In a similar vein I don't understand this point about charges which have snowballed. It is very important to know if the FOS can consider such cases as my brother has a stayed case at the moment. IF this avenue is open, via the FOS then its worth me trying it for him.

But I just don't see the FOS being willing to look at this. Granted I think its a scandle than he went from owing £k (authorized) to 3k (3k unauthorized and made up of charges), but if the FOS takes the law into consideration, which they sometimes do, I don't see how the snowball effect matters.

Anyone had any success with this approach?

The only option I though was availble was to try to argue hardship, one charge was equal to a whole weeks JSA. With the £20 unauth OD fee it wasn't a kick in the bottom off two weeks JSA. However my understanding is that it would nigh on impossible to argue this retrospectively since the bank would shrug its shoulders and say you should've done this at the time. He did tell the bank he'd lost his job but the mortgage centre said there's nothing we can do until your are three months in arrears.

The snowball effect in this particular case is not the worst I've seen but its pretty bad, is there any scope to take this to the FOS?

I'm not knocking the advice I just want to be as exact as I can if there is an avenue there. If the bank would waive even half the charges that would be a desirable outcome for him since he can't take his mortgage anywhere remotely competitive until this is sorted out.

[natweststaffmember]

Originally Posted by davidgmmafan

Ok so we all know the banks should at least consider refunding charges where the account holder is in hardship but there are two other points made in the section explaining what the FOS can look at. I've included them below so there is no misunderstanding:-

• Your charges are disproportionate
  Say you dipped into your unauthorised overdraft by £2.50 and incurred a £35 charge, it’s utterly disproportionate. The Ombudsman may look at this, though if you regularly do so, you’re unlikely to succeed.
• Snowballed charges
  This is the nasty situation of ‘charges on charges’ which traps people so they can’t clear their overdraft before new charges are added on. It’s one of the reasons many people can reclaim £1,000s. Though, of course, if this happened you’re likely to be in hardship too

The first one I really don't understand because this was the whole reason for the campaign. Whether its one charge or a thousand the charge is disproportionate. Is there a source on this? I don't see why the FOS wouldn't reject such a claim flat, if someone goes over by 1p and gets charged a fortune a common sense solution would be for the bank to waive the first charge. However the current situation is that, however unfair we feel the above is, the bank can do whatever it likes.
Supreme Court judgement is one source, furthermore, if you are charged and it takes you over your overdraft then it is 2 charges for one item. With regards to disproportionate, you cannot argue level of charge under UTCCR 1999
In a similar vein I don't understand this point about charges which have snowballed. It is very important to know if the FOS can consider such cases as my brother has a stayed case at the moment. IF this avenue is open, via the FOS then its worth me trying it for him.
If charges snowballed it could be about financial hardship coming as a result of the charges ie less income to pay bills as a result.
But I just don't see the FOS being willing to look at this. Granted I think its a scandle than he went from owing £k (authorized) to 3k (3k unauthorized and made up of charges), but if the FOS takes the law into consideration, which they sometimes do, I don't see how the snowball effect matters.
see above
Anyone had any success with this approach?

The only option I though was availble was to try to argue hardship, one charge was equal to a whole weeks JSA. With the £20 unauth OD fee it wasn't a kick in the bottom off two weeks JSA. However my understanding is that it would nigh on impossible to argue this retrospectively since the bank would shrug its shoulders and say you should've done this at the time. He did tell the bank he'd lost his job but the mortgage centre said there's nothing we can do until your are three months in arrears.
If you can show arrears and if you can show what you have tried to do with regards to contacting your lenders and the effect of the charges on income available over outgoings and whether the bank have properly assessed you then there is a chance to look at financial hardship.
The snowball effect in this particular case is not the worst I've seen but its pretty bad, is there any scope to take this to the FOS?

I'm not knocking the advice I just want to be as exact as I can if there is an avenue there. If the bank would waive even half the charges that would be a desirable outcome for him since he can't take his mortgage anywhere remotely competitive until this is sorted out.

See above.....

[davidgmmafan]

So is it worth a punt or not? He was one payment away from losing the house, one would hope that would qualify. The mortgage is with the same bank, not sure if this makes any difference.

Regarding the snowball thing when reading it it just struck me as going over the same ground twice with regards to hardship.

[natweststaffmember]

Originally Posted by davidgmmafan

So is it worth a punt or not? He was one payment away from losing the house, one would hope that would qualify. The mortgage is with the same bank, not sure if this makes any difference.

Regarding the snowball thing when reading it it just struck me as going over the same ground twice with regards to hardship.

Has your brother contacted the mortgage part of the bank to see what help they can give?
Yes I think you need to approach it from the argument of what was the cause of the charges, what you did, how and what you did with regards to speaking/writing to the bank about the circumstances, how you approached your creditors and what was done and then once that was done how the charges snowballed etc,etc,

[davidgmmafan]

We're talking past tense, yes he did and they said the caouldn't do anything until a person was three months in arrears. Then later they offered to switch the mortgage to interest only (for a fee of £120) which save a whopping £20 per month. Then there would be a fee of £120 to switch it back later on, so it'd take a year to break even.

[natweststaffmember]

Which bank is it, out of interest?

[scraggly]

Hi everyone, seeking some advice. I used money claim online to reclaim bank charges and received judgement in my favour last August. Paid for a warrant issued in September but the bailiff wasn't able to collect the money from the Halifax because they didn't respond to his requests. Since the court ruling in November they have applied to have the judgement set aside. What should I do - they applied to Halifax County Court and I live in Cardiff... the claim is for around £600, give it up?
Any advice greatfully received!

[Premier]

Originally Posted by scraggly

Hi everyone, seeking some advice. I used money claim online to reclaim bank charges and received judgement in my favour last August. Paid for a warrant issued in September but the bailiff wasn't able to collect the money from the Halifax because they didn't respond to his requests. Since the court ruling in November they have applied to have the judgement set aside. What should I do - they applied to Halifax County Court and I live in Cardiff... the claim is for around £600, give it up?
Any advice greatfully received!

What type of judgement did you initially receive? Default?

If not, what is the basis of their application to set aside the judgement?

I thought an application to set aside a judgement was made to the court that originally made the judgement (I may be wrong on that, but would seem logical)

Anyway, can you not request the matter be transferred to your local court if that is more convenient to you?

Even if you do succeed in preventing the judgement being set aside, how do you plan to recover the money owed? You already seem to have failed with the bailiff.

[natweststaffmember]

Originally Posted by scraggly

Hi everyone, seeking some advice. I used money claim online to reclaim bank charges and received judgement in my favour last August. Paid for a warrant issued in September but the bailiff wasn't able to collect the money from the Halifax because they didn't respond to his requests. Since the court ruling in November they have applied to have the judgement set aside. What should I do - they applied to Halifax County Court and I live in Cardiff... the claim is for around £600, give it up?
Any advice greatfully received!

As Premier has said you can get the case transferred to your local court but I would not fight the set aside as it is rarely not given.

[debbiequail]

I've just had my case adjourned for a future date, my arguement today was that whilst I have a letter from my bank (Bank of Ireland) stating that Transaction Fees and overdraft interest are pre-notified to me before they are charged to my account, in fact the charge was deducted on the day that the item was unpaid or a referral fee charged, and then a letter was issued notifying me of the change.

Has anyone else tried to argue this point, or any other comments??