A&L reply to the legal argument

midge61

Hi all

I had a complaint with the FOS for charges against A&L which they sent back to the bank in Dec 09. Bank then sent me the we won you lost get stuffed letter.

I then sent Martins new template for arguing the UTTC regulation 5.
This is the reply I have received



Any advice gratefully received.

Thanks
midge61

natweststaffmember

How exactly did you argue the point? Can you post up your letter omitting amounts and what you sent to the bank please?

midge61

[FONT=&quot]This is what I sent
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear sir/madam

I am writing in response to your letter dated

I refer to the following paragraph of your letter which I would like you to clarify for me.
“You may be aware that on 25th November 2009 the Supreme Court decided, unanimously, that the level of bank’s unarranged overdraft charges could not be assessed for fairness. Therefore we do not believe that there is any legal basis on which the amount of charges can be challenged.”

It is my understanding that the banks terms may not be assessed in terms of price under regulation 6(2)b of the Unfair Terms in Consumer Contracts Regulations (UTCCR). However, the Supreme Court clearly and unambiguously stated that due to the terms of the contract and the contract as a whole may still be subject to the assessment of fairness under regulation 5.1 of the UTCCR.

I also consider the terms to be in breach of section 140 of the Consumer Credit Act.

I further consider that there was an imbalance in the contract to my detriment as a consumer because;[/FONT]

• [FONT=&quot]I consider that Alliance & Leicester by virtue of the contract can impose which service they offer without consideration for or confirmation of what I intended. For example you could consider a request for overdraft and pay or simply reject payment on grounds of lack of funds. In performing these services you act as agent for myself and therefore should have had regard to my intent. My intent may be for the payment to be facilitated if there are sufficient funds, to be rejected if there are not or to be asked for confirmation (where practicable) otherwise. However the contract denies me the opportunity to express that or any specific intent other than that determined by.
  
  This is evidenced by Paid Item charges which on my statement do not show what the item was that was paid but if I had been informed I may of chosen not to have the item paid especially if it was for less than the £25 charge. Also the unpaid cheque charges such as, on 14/6/2009 a charge of £34 was made for not paying a cheque made out for £10 making this charge disproportionate.[/FONT][FONT=&quot][/FONT]
• [FONT=&quot] [/FONT]
• [FONT=&quot]I consider that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair.[/FONT][FONT=&quot][/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I suggest that if an 'overdraft extension request' was declined, there is no reason why Alliance & Leicester's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied. I could therefore not intend subsequent payments to be requests for assessment, and it would be to my detriment for them to be regarded as such. If the fee was argued to be for checking my account, Alliance & Leicester would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.


I also consider that your bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between me and your bank. In fact your terms & conditions make no reference whatsoever to the charges relating to the provision of any 'service', which was Alliance & Leicester’s adopted pleaded position during the test case.

The relevant terms at the time I opened my account stated;
(i) You must not overdraw the Account or exceed the Overdraft Limit (if any) without the Alliance & Leicester's agreement. If a payment does result in an overdraft or your Overdraft Limit being exceeded, you shall immediately repay the amount of the excess, together with any interest and other charges.
(j) The Alliance & Leicester does not guarantee that it will refuse to make any payment out of the Account in excess of any credit balance or overdraft facility. If the Alliance & Leicester decides to make a payment out of your Account which may cause it to become overdrawn or to exceed your Overdraft Limit, this does not mean that the Alliance & Leicester shall have to do so on another occasion nor does it constitute an increase in your Overdraft Limit.

I feel this was unlawful under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which your bank knowingly benefited. [/FONT][FONT=&quot][/FONT]

• [FONT=&quot]Alliance & Leicester misrepresented that the relevant terms were penal as opposed to contracting to provide services, or[/FONT][FONT=&quot][/FONT]

• [FONT=&quot]Alliance & Leicester were aware of my 'mistaken belief' that your relevant terms were penal but failed to correct this, to my detriment but to the benefit of Alliance & Leicester, alternatively Alliance & Leicester were aware that the relevant terms were penal in nature but realised they could argue they were in exchange for a package of services presented to the court accordingly. [/FONT][FONT=&quot][/FONT]

[FONT=&quot]In any case, the conduct of my account has relied on the misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and I contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services. [/FONT]
[FONT=&quot]I must also point out that Alliance & Leicester closed my account without notice in September 2009 leaving me without any money or access to my statements. It was also not possible for branch staff to access my account or the collections department who allowed a withdrawal despite there not being funds to cover it. I had asked if funds had gone in but no one could answer this but instead allowed the account to go overdrawn. This matter was dealt with by the Financial Ombudsman Service who found in my favour but Alliance & Leicester still failed to deal with my account appropriately.


[/FONT]
[FONT=&quot]Therefore I remain dissatisfied with your final response and request that you continue to consider my complaint and refund charges imposed under the contract between March 2007and September 2007 as previously requested.[/FONT]

esmerellda

Looks like a template reply and doesnt answer any of your queries/issues directly

(oh and the letter you sent isnt martins letter either)

midge61 wrote: »

[FONT=&quot]This is what I sent
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear sir/madam

I am writing in response to your letter dated

I refer to the following paragraph of your letter which I would like you to clarify for me.
“You may be aware that on 25th November 2009 the Supreme Court decided, unanimously, that the level of bank’s unarranged overdraft charges could not be assessed for fairness. Therefore we do not believe that there is any legal basis on which the amount of charges can be challenged.”

It is my understanding that the banks terms may not be assessed in terms of price under regulation 6(2)b of the Unfair Terms in Consumer Contracts Regulations (UTCCR). However, the Supreme Court clearly and unambiguously stated that due to the terms of the contract and the contract as a whole may still be subject to the assessment of fairness under regulation 5.1 of the UTCCR. no issues on level or price

I also consider the terms to be in breach of section 140 of the Consumer Credit Act.

I further consider that there was an imbalance in the contract to my detriment as a consumer because;[/FONT]

• [FONT=&quot]I consider that Alliance & Leicester by virtue of the contract can impose which service they offer without consideration for or confirmation of what I intended. For example you could consider a request for overdraft and pay or simply reject payment on grounds of lack of funds. In performing these services you act as agent for myself and therefore should have had regard to my intent. My intent may be for the payment to be facilitated if there are sufficient funds, to be rejected if there are not or to be asked for confirmation (where practicable) otherwise. However the contract denies me the opportunity to express that or any specific intent other than that determined by.
  no mention of price there and A&L have ignored the point
  This is evidenced by Paid Item charges which on my statement do not show what the item was that was paid but if I had been informed I may of chosen not to have the item paid especially if it was for less than the £25 charge. Also the unpaid cheque charges such as, on 14/6/2009 a charge of £34 was made for not paying a cheque made out for £10 making this charge disproportionate. possibly a price issue but in the context here its about whether you intended it to be paid or not and the contract not giving you any choice, or certainty about whether it would be paid or not.
  [/FONT]
• [FONT=&quot]I consider that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair.[/FONT][FONT=&quot]again not about price, but about the way the contract acts [/FONT]

[FONT=&quot]I suggest that if an 'overdraft extension request' was declined, there is no reason why Alliance & Leicester's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied. I could therefore not intend subsequent payments to be requests for assessment, and it would be to my detriment for them to be regarded as such. If the fee was argued to be for checking my account, Alliance & Leicester would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.[/FONT][FONT=&quot]again not price[/FONT]
[FONT=&quot]

I also consider that your bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between me and your bank. In fact your terms & conditions make no reference whatsoever to the charges relating to the provision of any 'service', which was Alliance & Leicester’s adopted pleaded position during the test case.

The relevant terms at the time I opened my account stated;
(i) You must not overdraw the Account or exceed the Overdraft Limit (if any) without the Alliance & Leicester's agreement. If a payment does result in an overdraft or your Overdraft Limit being exceeded, you shall immediately repay the amount of the excess, together with any interest and other charges.
(j) The Alliance & Leicester does not guarantee that it will refuse to make any payment out of the Account in excess of any credit balance or overdraft facility. If the Alliance & Leicester decides to make a payment out of your Account which may cause it to become overdrawn or to exceed your Overdraft Limit, this does not mean that the Alliance & Leicester shall have to do so on another occasion nor does it constitute an increase in your Overdraft Limit.

I feel this was unlawful under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which your bank knowingly benefited. [/FONT]

• [FONT=&quot]Alliance & Leicester misrepresented that the relevant terms were penal as opposed to contracting to provide services, or [/FONT]

• [FONT=&quot]Alliance & Leicester were aware of my 'mistaken belief' that your relevant terms were penal but failed to correct this, to my detriment but to the benefit of Alliance& Leicester, alternatively Alliance & Leicester were aware that the relevant terms were penal in nature but realised they could argue they were in exchange for a package of services presented to the court accordingly. [/FONT]

[FONT=&quot]In any case, the conduct of my account has relied on the misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and I contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services. [/FONT]
[FONT=&quot]they ignored this completely [/FONT]

[FONT=&quot]I must also point out that Alliance & Leicester closed my account without notice in September 2009 leaving me without any money or access to my statements. It was also not possible for branch staff to access my account or the collections department who allowed a withdrawal despite there not being funds to cover it. I had asked if funds had gone in but no one could answer this but instead allowed the account to go overdrawn. This matter was dealt with by the Financial Ombudsman Service who found in my favour but Alliance & Leicester still failed to deal with my account appropriately. [/FONT][FONT=&quot]did A&L do as the Ombudsman told them ? What did A&L do that you consider they failed to deal with ?[/FONT]
[FONT=&quot]

[/FONT]
[FONT=&quot]Therefore I remain dissatisfied with your final response and request that you continue to consider my complaint and refund charges imposed under the contract between March 2007and September 2007 as previously requested.[/FONT]

midge61

sorry got mixwd up it was your template!

A&L paid £100 compensation but still the account was not accessible. They have recently asked me to pay back od which I have arranged to do but they have given the wrong amount so have pointed this out.

should I write again and point out the bits they have failed to answer?

esmerellda

lol it's okay, doesn't bother me where it's attributed if it works, which it hasnt lol.

Yes I would respond with a lot more personal instances trying to avoid price / level of charges issues as much as you can and pointing out the areas that they havent mentioned.

Now remember A&L were not actually part of the test case but the ruling does follow over to them. Since we first wrote that views have altered a little, but if you want to have a go at the letter, with your own issues, including the compensation and arrangement to repay the OD issues you have had, then I'm happy to help you strengthen it a bit.

They will probably come back and say that was their final response in which case you can start preparing for your FOS complaint (should be practised at that now lol)

midge61

Thanks will get a letter drafted over the next couple of days.

davidgmmafan

If they haven't complied with the FOS directions wouldn't it be worth pointing this out the the FOS? Don't know what they do in such circumstances as I've not encountered it before.