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Heard from your bank/court about your claim being restarted? Please let us know.

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  • woodymeg
    woodymeg Posts: 206 Forumite
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    Would just like to say a BIG BIG thankyou for everyones help and advise over past few months, couldnt of done it without you all and this site.:beer::A:A:A:A:A:beer:

    And hope you all have a great christmas:j
  • onlypaddy
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    esmerellda wrote: »
    Thats wonderful, hardship claims should continue under BCOBS so great to know they are still processing these complaints successfully.

    weirdly, stories like this make me angry!

    i was in hardship for about 8 months after christmas last year (I'm not now, thankfully). but Lloyds still refused to look at my case despite about 7 letters telling them they had to because the FSA hold didnt apply to me. i sent them statements, SOAs you name it and was ignored.

    in the end, uni had to bail me out cos i couldnt pay a thing.

    this is the only reason mine is in the courts, i wanted it solved quickly and thought if I could prove to the court I was in hardship they would have it seen, but they ignored me too.

    im going to stop paying taxes
    Debts at LBM (May '08) £5760 - Lloyds CC £4260, Lloyds OD £1500;
    Debts as of May 28th 2011:
    Santander CC: £0.00
    Lloyds OD : £0.00
    DFW Nerd #1247 - Proudly dealt with my Debts :D Olympic 2012 Challenge #12
  • esmerellda
    esmerellda Posts: 2,237 Forumite
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    Hardship isnt and has never been a court issue, tho I can understand why you pushed it to court. Lloyds are notouriously difficult with hardship in any case, and the FOS dont seem to overturn much of their decisions on it.

    You can have a read of the LendingCode guidance (section 9) see how hardship has been strengthened somewhat and also sec 5 of BCOBS (FSA regualtion)
    LegalBeagles
  • angrybankcustomer
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    Hi
    newbie to this so apologies if posted in error. My case against the bank is listed for the sheriff court on 14 Jan with the bank having until 7 Jan to decide whether to defend or not. I've not heard either from the bank or the court. Can anyone advise how to proceed?
  • esmerellda
    esmerellda Posts: 2,237 Forumite
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    Firstly can you tell us what arguments you used in making the claim.

    You should be okay waiting until the 7th Jan then posting here or pm'ing someone for assistance - things should be clearer at that time.
    LegalBeagles
  • boomclart
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    boomclart wrote: »
    How much time do those who have not taken their cases any further than the bank?

    My original claim was put on hold by the bank just after I'd sent the first letter detailing the charges I wish to reclaim.

    If the bank rejects the claim, do I have a period of time to change my claim.

    If I don't does it mean I can only claim 6 years back from the date I make a new claim under the anticipated new regulation?

    The reason I ask is most of my claims came within 2002-2003, I have kept check of my account for the past 3-4 years and any claim which incorporates the past 6 years will be minimal.

    Is anyone able to answer this?
  • esmerellda
    esmerellda Posts: 2,237 Forumite
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    boomclart wrote: »
    Is anyone able to answer this?

    If the claims with the bank then it will still be on hold, the banks are still chatting with the OFT and FSA about the next steps and will let you know when they do what will happen. the limitations of 6 years runs from when you first entered the complaint to the bank so its frozen at that point. You just need to let us know if you receive anything from the bank really.

    Barclays dont seem to have acted in any cases as yet.


    oo missed a bit - if the bank rejects your claim based on the judgment you just will write back and say you dont agree because of X,y and z - its much easier for you if you arent in the court system
    LegalBeagles
  • esmerellda wrote: »
    Firstly can you tell us what arguments you used in making the claim.

    You should be okay waiting until the 7th Jan then posting here or pm'ing someone for assistance - things should be clearer at that time.

    Hi
    arguement posted below. Thanks for any advice

    The defenders state that charges are necessary to cover their costs. The defenders are called upon to lodge in process a statement indicating how much annual pre-tax profit is generated from applying bank charges to current accounts, identifying the income generated from applying charges to current accounts as against the expenditure incurred in processing unauthorised overdrafts. Their failure to do so will be founded upon. The amount of charges applied does not represent the defender’s actual costs in providing unauthorised lending on the pursuer’s current account under explanation that a substantial proportion of the defenders’ pre-tax profits are believed to be earned from bank charges.

    4. The defenders charges represent a contractual penalty or fine and as such are irrecoverable at Scots common law. In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses which flowed from a breach of contract. The defenders charges are not liquidated losses and therefore the pursuer is entitled to be reimbursed in the sum craved.

    5. Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations: ‘Indicative and non-exhaustive list of terms which may be regarded as unfair
    1. Terms which have the object of effect of-
    (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.
    Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:

    OFT case 15 – Kids of Wilmslow Ltd.
    Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.

    OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.
    A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

    OFT case 4 – Dampcure-Woodcure/30Ltd.
    Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.
    Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTCC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.
  • esmerellda
    esmerellda Posts: 2,237 Forumite
    edited 14 December 2009 at 12:53PM
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    Hiya

    Yes you will need to amend your claim as it is based primarily on breach of contract and penalty arguments (and as things stand bank charges are deemed as neither legally). However theres quiet a bit in there you can keep. As its Govan Law and Scotland then you would probably be best keeping an eye on Mike Daillys comments on Govan Law. He's still working on arguments behind the scenes as far as I am aware and either he, this site or the other consumer sites will get information up on how to proceed asap.

    You should still be okay waiting for the response date as by then things should be much much clearer.

    Ame
    xx


    as an aside on this part
    The defenders state that charges are necessary to cover their costs. The defenders are called upon to lodge in process a statement indicating how much annual pre-tax profit is generated from applying bank charges to current accounts, identifying the income generated from applying charges to current accounts as against the expenditure incurred in processing unauthorised overdrafts. Their failure to do so will be founded upon. The amount of charges applied does not represent the defender’s actual costs in providing unauthorised lending on the pursuer’s current account under explanation that a substantial proportion of the defenders’ pre-tax profits are believed to be earned from bank charges.

    Interesting way of asking especially now the banks are contending the charges are meant to subsidise the rest of retail banking the answer in their response would be interesting to that.
    LegalBeagles
  • Paulajane
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    I put my claim in November for hardship but was refused. I then sent another letter and last week received a letter from HSBC dated 01/12/09 offering me as a gesture of good will, an offer of £860 as an ex gratia payment in full and final settlement. My claim is for £11,000 + inc interest. That's a difference of aprox £10,000. My claim is for Business Account and I have included Total Charges in my claim, although advised not to on this site. Not sure what my next step should be.
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