A Different Bank...

[yellowplum]

Well after reading this and other sites, I decided to take some action against a former bank of mine.

 

A small bank based in London/Manchester/Birmingham that well prides itself on its inability to even perform the minor functions of day to day banking within the realms of UK legislation.

 

What you may ask is the name of this bank...well its the BANK OF CYPRUS (LONDON) LTD (Bank Of Cyprus)

 

First letter went out to them today. Let’s see what they do with it...I am making an assumption here but I think they will just bin it because they wont know what to do with it...

[yellowplum]

After sending the standard letter from this site I received a prompt response from the Bank of Cyprus today.

 

However, I am rather unsure how exactly to proceed. I have looked closely at the site and been unable to find what the best course of action is.

 

They have responded with the following text.

 

'Thank you for your letter dated 21st August 2006 claiming a refund of charges made by us in the past.

 

Our charges are clearly stated in the literature given to our customers when they open their accounts and are also readily available on the internet. We believe we have operated lawfully in accordance with the Banking Code with regard to your account. However if you disagree perhaps you could point out to us what stature or consumer regulations you think we have breached. If as you state we have breached common law, could you please tell us what decided cases you are referring to.

 

We look forward to hearing from you.’

So what I am really asking is how to respond to them. Most of the forum posts are regarding lack of responses, how do you deal with them when they want proof of their errors?

Any help would be gratefully appreciated…

[misspickles]

Right,

what was the first letter you sent to them? Was it your pre lim letter? if so how do you know how much you have been charged? Also you need to send a SAR DPA to cover any manual intervention queries, even if you know your charges. ill copy a letter i sent when i got a reply like that . . in the next post . . . .

[misspickles]

Hi there, have a look at this letter zoot suggested,

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/27062-northern-rock-laughing-my.html

 

it is for a slightly different purpose but you could use the info contained in it to put your own reply together for them

 

Miss P x

[yellowplum]

Hi thanks for the reply.

 

I sent the first standard letter that is provided here in the templates library to them. I also sent them a breakdown of the charges they levied on the account which I also obtained from the templates library.

 

The only thing I haven’t done is send them an access request. I am sure of the charges they have levied as I have my full statements from the date the account was opened to the date the account was closed.

They did do something which I am also not best pleased with as they revealed some information regarding my account to my father without my knowledge but that is another story.

 

 

The only statement you make is regarding the manual intervention query that I am not sure exactly what you are referring to. Does this mean it is treated in a different way in reclaiming your charges if they manually applied them?

 

Thanks for your help

[yellowplum]

Well this morning anohter letter arrived from the Bank.

 

Short and sweet as always....

 

Not budging becuase I was repeating the same allegations and not answering the question to point out to them what laws they have breached.

 

So with the help of others (thanks to all who replied) I drafted another letter that has been sampled on another post, and sent it off to them.

 

I will be generous and give them 7 days from today to respond with a cheque otherwise I will just issue proceedings.

 

Oh and Barclaycard never bothered to respind to me, what a supprise there then.

 

Thank you for your letter dated XXXX regarding my request for the repayment of charges in which you claim that the charges are lawful as they do not relate to a breach of contract.

I find this a rather bizarre argument as it is clearly stated in the terms and conditions that I must have sufficient funds in my account to cover cheques, direct debits and standing orders. Thus when you provide the service of returning these items unpaid, these services clearly relate to a breach. It also clearly states in my contract that I have an overdraft limit of given amount. If I go over this limit I am thus in breach of this term of the contract. The fact that you contemplate me breaching this term cannot and will not prevent me from being in breach.

Thus the only plausible analysis that can be applied is that you have contemplated my breach of contract and provided for this eventuality with your charges. English contract law requires such a fee to be a genuine pre-estimate of your losses if it is to be lawful following Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

I believe that the charges you have levied of £XXXX far exceed any true cost to yourself as a result of our breach and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of my breaches, in order to reassure me that your charges really do reflect your costs.

In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. Your charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fees of £XXXX which you deemed fit to apply to our account.

The fact that I agreed to these charges when I opened my account does not make these charges enforceable. In all the cases regarding penalty clauses there is no dispute that the term was agreed to. However, a court finding of a penalty clause as oppose to a liquidated damages clause renders the clause unenforceable in its entirety even if it has in fact been agreed to.

I trust this clears things up, I expect a full refund of these charges by return. Failure to do so will result in further action being taken to recover these unlawful charges without notice.

[yellowplum]

Well went to issue the claim through Chichester County Court, but I am having it returned to me a I did not have sufficient information on the claim form. Ok that bit I can live with (more will be revealed with I actually get the letter back from the Court)

 

What was more of an issue was the fact that they said I could not claim the interest from the date specified on the form. I could only claim interest from the date of the form being issued.

 

Well, so much for a court knowing what they are doing.

 

It seems that the claim actually went before a judge before being issued. So it would be interesting to see what the letter actually says.

[yellowplum]

Finally received the letter from Chichester County Court this morning rejecting my claim. However, I can probably agree that I was not as clear (since I placed Particulars to Follow) what the claim was for on the N1.

 

 

What was rather disconcerting was the second paragraph on the letter...

 

I have transcribed the entire letter bellow...

 

 

Your Claim Form was referred to the District Judge, who states as follows:

 

‘The Claim is inadequately set out. When did the charges arise and for what periods and for what services if any were they imposed? Interest should be calculated for the period from the date of issue’

[ukaviator]

Hi Yellowplum

 

Sorry to hear that it has been thrown out,but you must follow the claim process to the letter.Care must be taken at the court stage.The information required should clearly state that they are overlimit fees and late payment fees.

Here is what should have been put down:

 

Claimant has account (A/C No-sort code) with Defendant from (Date a/c opened) conducted on their standard terms and conditions. Claimant is claiming the return of (£0.00 = amount of charges claimed) taken by Defendant in charges over (X) years. The Defendant's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. They are also invalid under the Unfair Contracts Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999.Para.8 and sch.2.1.e.

In the event that the charges are not a penalty they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. Defendant has declined justification of charges despite repeated requests. Claimant claims interest under Sec.69 of the County Courts Act 1984 at a rate of 8% a year from (Date of 1st charge) to (Date of filing claim) of (£0.00 =The interest in the 8% spreadsheet calculation) and also interest at same rate up to the date of judgment or earlier payment at a daily rate of (£0.00p = Amount of charges claimed x 0.00022).

Hope this helps

Ukaviator

[yellowplum]

Hi Yellowplum

 

Sorry to hear that it has been thrown out

 

Just to clarify, the claim wasn't thrown out it was never issued.

 

My post wasn't really referring to why it was not issued; rather I know why it was not issued. The reason was that I did not give enough details regarding the claim in the section 'BRIEF DETAILS OF CLAIM' on the front of the N1.

 

My particulars of claim are to follow as I am seeking clarification on a point first, therefore the claim form was marked accordingly 'TO FOLLOW'

 

Since there wasn't sufficient information to issue they returned it and asked me to rewrite the section under Brief Details.

 

However, what I was more intrigued by was the fact that the Judge commented that interest could only be claimed from the date of the issue of the claim form. I was wondering if anyone else had received this comment regarding interest.

[yellowplum]

Well the saga continues on this one….

 

In the meantime of issuing proceedings I have this morning received a response from the Bank of Cyprus regarding there charges.

 

This is what it said…

 

Thank you for your letter dates 6 September 2006

We have reviewed the case law and the regulations mentioned in your letter. In our view the charges we levy when customers go overdrawn represent the costs incurred by the Bank in administering such accounts. In legal terms this means that we regard the charges as liquidated damages rather than penalties. Hence the case law and the regulations quoted by you do not apply in relation to your account.

Please also note that these charges were clearly stated at the time of opening the account and covered by the Bank’s tariff of charges referred to in the Terms and Conditions agreed by you at the time. Despite what you say in your letter, such agreement is relevant as the court is usually reluctant to interfere with agreed contracts unless the charges in question are so unconscionable as to merit such interference.

We enclose a printout from a website describing how the courts have in the past decided certain contractual charges constitute a penalty or liquidated damages. You will note that in most of the cases quoted the charges were not treated as penalties.

(enclosed printout was from this site… http://www.alway-associates.co.uk/legal-update/article.asp?id=82)

In conclusion we cannot agree to refund your charges. We note that you intend to take further action if we not give you a full refund, and we now confirm that our internal complaints procedure has been exhausted, which means that you will be able to refer the matter to the Financial Ombudsman Service, whose address is as set out bellow:

Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London E14 9SR

Yours Sincerely

Bank of Cyprus

 

Anyone have any thoughts or comments on this??