@santanderbankgb Bounced Cheque - Cause for Action for Damages? ** VICTORY IS MINE **

[madpriest]

OK - I'm going to take a pause for a couple of days as I'm away at a conference from this afternoon onwards. This will give me some time to reflect

although I'll take my iPad with me.

 

I guess we need to reflect on what we are trying to achieve here. For myself, it was a way of getting the maximum funds out of the bank. If I make the decision not

to pursue a claim for defamation/libel because of the possible costs, I've got to find a way of slipping it in as a damage to reputation. From your point of view, we need to

win a case on BCOB and PSR being part of the contract. You've yet to say, why this is important to the overall agenda. I don't mind this riding on the coat tails of the

our prime objective if it helps others. But for example £3300 is not unreasonable for damage to reputation.

 

There is no interest element. The account was a small society current account which paid no interest and was a 'free' account, ie. no charges were levied.

Whilst it is in dormant status, it also has no interest. I could I suppose argue that if I had access to the money I could get some interest elsewhere??

 

Next step is to put this on the back burner and get a letter of formal complaint done.

 

cheers

[madpriest]

Cheers

 

There appears to be a line missing from your post.

 

"For you, BCIBS abd PSR are ...." and then a blank line

 

[BankFodder]

BCOBS and PSR are important to your claim - because they are highly authoritative rules which give the judge a very solid hook to go on. Especially at a County Court level, judges need to feel a basis for being confident about what they are doing. For you, BCOBS and PSR are the main pillars of your complaint

 

On a wider basis, as you may know, BCOBS replaced the Code of Practice which was abolished in Nov 2009. The PSR came in at the same time.

The banks were never fazed by the code of practice and paid lip service to it - and it became a marketing tool more than anything else.

The statutory rules which came in 2009 place very serious obligations on the banks yet despite this the banks have broadly continued business as usual. More importantly, whereas every bank would site the Code of Practice to justify it their decisions - and whereas every Bank carried copies of the code in their branches - or guides to the code - and although even the FOS referred to the Code as a matter of course, the entire banking world is completely silent on the matter - the FOS, even the FSA seem reluctant to let people know about their very powerful rights.

The only way to break the silence is for people to use these rights and to show others what can be done.

[BankFodder]

By the way, you should be aware that - rarely - where a claim is reckoned to involve a level of complexity - which means that it might take more than 5 hours to dispose of, then it could still be allocated to a higher track - despite its value.

[madpriest]

Would you believe it --- my account is still blocked !!!!!!!

 

I feel an injunction coming on ---- any ideas on how we can do this?

[BankFodder]

The best way would be to issue the claim and then to apply for an interim injunction.

However, injunctions aren't given lightly and in particular, if it is considered that you would be adequately compensated by an award of damages in the event that your claim was successful - then it is likely that an injunction would be refused.

 

Have you actually written to the bank about this?

When?

[madpriest]

I havent written to the bank yet. Thats going to take place as a formal complaint.

The most important thing at the moment is getting the account unblocked and I'm running around in circles

[BankFodder]

You really should have written to the bank by now. I assumed that you had - and I don't know why we are discussing all the above without firing off at least one letter to the bank.

 

I think that you need to do this now.

 

I suggest that you write a letter, setting out what has happened - everything.

 

Tell them that they have damaged your reputation as well as causing great inconvenience.

Tell them that they are treating you unfairly and that matters have been made far worse by the fact that despite phone calls, the account is still blocked.

 

Tell them that in view of the fact that you have spoken with them repeatedly on the phone with no solution, they should consider that this letter as the beginning of the pre-action protocol.

Tell them that within 7 days you want the account opened, a full explanation of what has happened and a sensible proposal for compensation.

tell them that if you do not receive all of this then in 7 days you will send them a letter before action because you are determined to take the matter to the County Court if necessary.

 

Send it today - 1st class.

If you don't get a response by next Wed post then send them the LBA - 7 days and then the Glad Tidings.

 

There is nothing else to do now - if you want to take it forard.

[BankFodder]

Let me add that if you want to convince the court of the bona fides of your reputation concern - then you must act with alacrity

[madpriest]

Thanks - The reason why no letter had gone off, is that I wanted to focus on getting the account unblocked.

 

To make matters worse, I received a text message to say that my complaint had been registered. Then 3 minutes later - another text

to say that the complaint had been closed.

 

I've just sent the following by special delivery

 

--

 

Yours with alacrity

 

 

 

I refer to the above mentioned account as make formal complaint as follows:

 

1. In late April of this year, I received a letter from you stating that the account would be made ‘dormant’ unless some activity was seen on the account.

 

2. On 1st May 2012, I telephoned your team to state that I did not want this account to be made dormant and although it was little used, it was needed to make essential repairs to our church building.

 

3. I understand that on 8th May 2012, your telephone banking team emailed the admin team for dormant accounts passing on our instruction.

 

4. On 2nd November 2012, we drew two cheques on the account to pay some bills, but both cheques were returned to the payee marked “Payment Stopped” inferring that we had stopped the payment. The payees contacted me around the 18th November 2012.

 

5. On 20th/21st November, we contacted your telephone banking team to express our concerns and was told that we needed to provide documentation regarding the account and some photo identification.

 

6. On 21st November, I visited your Lowestoft branch and the documentation together with a covering letter was transmitted to you at 12:51 on that date. I was assured by your representative at the branch that the account would be live the following morning 22nd.

 

7. Since then I have telephoned daily and as of today 27th November 2012, at 11:37am, the account us still not live and remains blocked despite best efforts and escalation by your staff.

8. To add insult to injury, I today received a text (SMS) message telling me that a complaint had been opened and then 3 minutes later another text message to say that the complaint had been closed.

 

Santander has treated us unfairly in that despite numerous phones calls the account is still blocked. The account should never have been made dormant after our instruction, you have dishonoured cheques despite there being adequate funds.

 

In view of the fact that I have spoken to you repeatedly without solution, you should consider this letter as the beginning of a pre-action protocol.

 

If within 7 days, the account is not made live with access to the funds, together with a full explanation of what has happened and a sensible proposal for compensation, I will issue a Letter Before Action prior to commencing an action for loss and damages.

 

I cannot underestimate the seriousness of this matter of the failure of Santander to perform it’s statutory duties and to the damage to the reputation of the church, whose probity must always be and be seen to be, at the highest levels.

[BankFodder]

I think that you have made a fundamental error by not getting something in writing some time ago.

 

If you still have the text messages then make sure you keep them Print them out if you can and keep the originals on the phone in case a judge wanted to see them.

I know you are recording calls - and that is good - but I suggest that you do nothing more on the phone. If you get a phone call from someone suggesting a meeting, ask them for an agenda and what arrangements are being made to minute the meeting and can you have a copy of the minutes.

The answers will probably be - none, none and why would you want them?

[madpriest]

Back from my conference.

 

I got a phone call from the bank at 09:10 this morning

saying the account was now unblocked.

 

I said 'Thank you for your assistance" and closed the call.

 

They now have my official letter of complaint.

 

7 days and then LBA

 

7/14 more days then the good news

 

Laters

[madpriest]

@BankFodder

 

re BCOBS - I know that you argue that they are an implied condition of contact (or that it needs to be argued...)

 

but is it also/or a statutory duty in the same was that the PSR's are ??

[BankFodder]

@BankFodder

 

re BCOBS - I know that you argue that they are an implied condition of contact (or that it needs to be argued...)

 

but is it also/or a statutory duty in the same was that the PSR's are ??

 

As I said in an earlier post - I had misunderstood. Although they are definitely implied into the contract, they stand on their own as a breach of stat duty.

So in your POC you simply allege that they under BCOBS they have a duty to treat you fairly. By virtue of a breach of that duty they have caused you damage.

[madpriest]

Had a phone call at 0950 this morning from the business banking complaints department.

 

"Have you got a few moments to discuss the complaint Mr XXX"

 

"No I'm sorry but I would prefer to deal with this only ion writing"

 

"Ok - No problem Mr X"

 

"Fine - thanks very much for calling me"

 

 

I'm sure I did the right thing

[madpriest]

Deep Joy

 

I've received a response to my letter of complaint answering points 7 and 8 only

together with an Ombudsman leaflet.

 

Next Letter before Action? Give them 7 or 14 days?

[madpriest]

Santanders response to my official complaint only dealt with the shoddy way they handled my complaint by SMS text messages. They failed to comment in any way with regard to the substantive issues.

 

Therefore, LBA being sent today.

 

Quote

I refer to my letter dated 27th November 2012 as a formal complaint and your response dated 29th November 2012 for which I acknowledge.

 

Sadly, your response only dealt with Item 8 in my letter of complaint which was the sending of SMS text messages by the bank to myself regarding the opening and closing of a complaint.

 

Santander have not dealt with the substantive issues of my complaint which I repeat as follows:

 

1. In late April of this year, I received a letter from you stating that the account would be made ‘dormant’ unless some activity was seen on the account.

 

2. On 1st May 2012, I telephoned your team to state that I did not want this account to be made dormant and although it was little used, it was needed to make essential repairs to our church building.

 

3. I understand that on 8th May 2012, your telephone banking team emailed the admin team for dormant accounts passing on our instruction.

 

4. On 2nd November 2012, we drew two cheques on the account to pay some bills, but both cheques were returned to the payee marked “Payment Stopped” inferring that we had stopped the payment. The payees contacted me around the 18th November 2012.

 

5. On 20th/21st November, we contacted your telephone banking team to express our concerns and was told that we needed to provide documentation regarding the account and some photo identification.

 

6. On 21st November, I visited your Lowestoft branch and the documentation together with a covering letter was transmitted to you at 12:51 on that date. I was assured by your representative at the branch that the account would be live the following morning 22nd.

 

Santander has treated us unfairly in that despite numerous phones calls the account was still blocked and I was only informed at 09:10 on 28th November that the account was now live.

 

The account should never have been made dormant after our instruction, you have dishonoured cheques despite there being adequate funds.

 

Although the account is now active, you have failed to provide a full explanation of what has happened with regard to the making of the account dormant; you have failed to provide a full explanation of the dishonouring of our cheques; and you have failed to propose a sensible proposal for compensation. If these are not received within 10 days, then legal action will follow seeking loss and damages against Santander for it’s breach of statutory obligations.

 

Please do not underestimate the seriousness of this matter of the failure of Santander to perform it’s statutory duties and to the damage to the reputation of the church, whose probity must always be and be seen to be, at the highest levels.

Endquote

 

 

Any comments before it goes??

 

 

Cheers

[BankFodder]

Looks fine - although a bit less of the "Sadly" if it were my letter.

[madpriest]

Looks fine - although a bit less of the "Sadly" if it were my letter.

 

Yeah but they pay me to be 'nice' - thats why I gave them 10 days instead of 7 ....

 

LBA has now gone off with special delivery.

 

As I wait and reflect, I think the thing the surprises me in their

letter was the fact that they dealt with none of my substantive issues

but chose to deal with the most minor one, that of the SMS messages.

They said they were sorry that I didn't get a chance to accept or reject

"the resolution" and that the advisor would be spoken to.

 

@madfodder - I think you're probably right in that I may have to consider

what to do if they come up with a financial offer. I'm tempted to go for a case

to make sure that an action for breach of statutory duty in the county court, succeeds.

 

Thanks for your help - watch this space

[madpriest]

Well - I am waiting for an answer to my LBA but I'm not holding my breath and it looks like

Santander will be receiving my gift of an N1 for Christmas

 

As I am preparing my bundle and preparing my legal arguments which I'm going to need help with

please - I noticed in my POC the following para 1

 

"The claims are the parties responsible in law .............. and are a consumer as defined in the FSA sourcebook......"

 

I can't find the definition of a consumer on the sourcebook. Can someone point me to page and para

 

Thanks and blessings

[madpriest]

OK - firstly no response to the LBA and its been 10 days. I'm preparing the N1 as we speak and

I'll wait for the postie tomorrow and troll on down to the County Court.

 

Meantime, I need to know where in the FSA sourcebook is the definition of a 'consumer'.

 

If I cant find it i'll have to leave it out and rely on 'private person'

[BankFodder]

I think that it might either be a "person" or an "individual".

[madpriest]

@BankFodder - Thanks

 

I've checked again and it is actually "consumer" as defined in the FSA Handbook (rather than the Sourcebook) and a 'private person' for the purposes of Section 150 of the FSMA 200 and Section 120 of the PSR 2009

 

I'll post a redrafted POC later before I troll down to the County Court.

 

(I feel this rather groovy blues riff coming on ...... "I went down to the courthouse - my N1 in my hand ......)

[madpriest]

Here's the revised POC.

 

I'm considering leaving the amount of damages (currently not exceeding £4500) blank and

to the discretion of the court. Is the court legally able to award more than £5K on the Small Claims Track??

If not I'll leave it at £4.5K

 

Particulars of Claim

(1)

The claimants are the parties responsible in law for the affairs of the church of XXXXXXXXXXX and are a consumer as defined in the FSA handbook and are deemed a private person for the purposes of Section 150 of the Financial Service and Markets Act 2000 and Section 120 of the Payment Services Regulations 2009.

(2)

The defendant is a firm regulated by the FSA under the Financial Service and Markets Act 2000 and as such is subject to the Banking: Conduct of Business Regulations (BCOB) 2009 which requires inter alia that firms treat their customers fairly (R.5.1.1). The defendant is also subject to the Payment Services Regulations 2009.

 

(3)

From 1999 the defendant or it’s predecessors have supplied current account services to the claimant - account reference number 1123456789 - subject to contract being the “General Terms and Conditions – Current Accounts and Savings Accounts (including Cash ISA’s)” and also subject to the statutory duties and the implied conditions contained in the Banking: Conduct of Business Regulations (BCOB) 2009 and the Payment Services Regulations 2009.

The claimant has held this account with the defendant for 13 years and the account has at all times been run satisfactorily

(4)

In breach of their statutory duties to the claimant, the defendant acted unfairly in that they:

(a) classified the claimant’s account dormant despite being requested not to do so; Contrary BCOB 2009 R5.1.1.

(b) failed to communicate to the claimant that it had done so; Contrary BCOB 2009 R5.1.1.

© returned two cheques unpaid despite there being sufficient funds available; Contrary BCOB 2009 R5.1.1

(d) and failed to communicate to the claimant that the cheques had been returned unpaid contrary to it’s statutory duty under Section 66 Payment Services Regulations 2009

By virtue of the above unfairness and breach of statutory duties the claimant has suffered loss, inconvenience and damage.

(5)

Particulars of loss

Cost of Telephone Calls - £3.00

Cost of Transcription - £20.00

Cost of Postage and Special Delivery £11.00

Total - £34.00

Particulars of inconvenience

The claimant has had to spend much time in dealing with the defendant by telephone calls etc and to dealing with creditors whose payments were returned. The claimant has also had to spend time in researching banking regulations.

Total - £100.00

Particulars of Damage

 

Any church or charity has to operate with the highest levels of probity. The return of the cheques to the payment with the false assignation “Payment Stopped” has cast doubts on the integrity of the church and of it’s officers.

 

 

And the claimant claims £134.00 compensation for actual loss and inconvenience plus damages not exceeding £4500 for damage to reputation to be decided by the court plus interest pursuant to s.69 County Courts Act 1984

 

 

I believe that the facts laid out in this particulars of claim are true

[BankFodder]

The court can't normally award more than £5k on the SCT. Don't leave it open as it could go on to the multi and also it could result in a higher claim fee.

 

Keep the figure modest. I do think that £4.5k is stretching it and you will have more credibility with a smaller claim.

 

Don't forget that you will have to justify your claim by reference to the damage which you have suffered and you will have to put your case in court