Won charges back but repayment method.

[Glenn UK]

LFI

 

Your now 'changing the game' to coin a phrase.

 

The issue raised was can the claimant insist on a cheque by way of repayment of the claim.

 

The particular clause you quoted doesn't in my view deal with the issues raised, or at least there is the big issue of what rights have been limited?

 

Since this is in an Act, then it would be reasonable to presume that the rights mentioned are also of a legal form and not something which you or I might think of as 'fair or reasonable' in a simple sense.

 

If there are other points such as re-opening accounts that is an entirely different matter to the simple question about insisting payment by cheque over settling a debt or part thereof.

 

I don't think that a claim, even one arising out of a contractual dispute, is necessarily subject to the terms of the original contract and therefore the bank hasn't or doesn't need to unilaterally alter the contract.

 

If the contract includes provision for dispute resolution and methods of repayment where a dispute is settled then it may be a case of the bank altering the contract unilaterally.

 

When you say what gives them the right to treat everyone the same way, this is a strange idea or at least to me it is.

 

The overriding point of claiming the charges back is to put the claimant back where they would have been had the charges not been taken (I realise the irony of this bearing in mind everything that goes with the issue of unlawful charges but bear with me please).

 

When a claimant accepts a settlement i believe the courts would order that the debt was reduced or paid off before they would order the bank to give the claimant a cheque unless there is an overriding legal reason why they shouldn't do that.

 

Not having access to funds and settling debts are not necessarily the same thing.

 

I don't owe abbey anything if they decide to open my old account and put money in there its not settled for obvious reasons.

 

If i owed them more than they owed me and the debt was reduced this isn't the same as not having access to the money. The claimant has benefited from the return of their money.

 

If you want to argue all the possible scenarios then go ahead, the bottom line is the points raised so far in support of the claimant seem to expect the court to allow them to 'borrow' money against their debt.

 

JMHO

 

Glenn

 

PS although I'm arguing against the views being generally posted its not because i want to be right, quite the reverse, its just that in this case i don't see a court, which would be the ultimate test would award the claimant the cheque under these circumstances.

[lookinforinfo]

Glenn, you have me at an advantage. You say the particular clause I quoted

doesn't deal with the issues raised.

As I answered -

"inappropriately excluding or limiting the legal rights of the consumer vis-à-

vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him"

 

that one before moving on to raise another point of argument against banks

not paying out cheques when asked here-

"enabling the seller or supplier to alter the terms of the contract unilaterally

without a valid reason which is specified in the contract"

 

I am not sure which clause you are referring to.

 

 

PS I know we have crossed swords on this topic before, and though I am as

much in the dark as you, I am looking at it from the opposite end of the argument. I am not considering it from a moral or ethical view, I do think the Law is on my side.By exchanging viewpoints with you I feel that the first unfair term above does help to answer the conundrum, if you will, of the validiity of

banks refusing to pay by cheque when there is a debt owing.

[gizmo111]

If it is any help - Cobbetts sent me a cheque on a Natwest claim with a specific account number on it - Isent it back and told them that I don't want to pay it into that account and they sent me cheque today with no account no on. I have an OD with NW - but there are no charges on it.

[Glenn UK]

LFI

 

The clause that keeps getting quoted relates to the behaviour of the seller or provider and them imposing a change on the contract to limit the consumers rights.

 

1. the first clause deals with the seller or provider behaving improperly to limit the consumers rights.

 

Consider it this way, you run a bank account and break the terms and conditions allowing them to charge you. This is not money you have its only realised if and went they try to collect it or you pay it.

 

By putting money back into your account and reducing the balance they have restored you to where you were.

 

Its only where you have actually paid the money to them that they have to give it to you by way of cheque.

 

If you haven't actually paid it, i.e. its a debt balance on your account, then removing that debit balance or reducing it puts you back where you were.

 

I cannot see a court seeing it any other way simply because the claimant would rather have the cash to spend as they feel fit.

 

2. When you begin a claim it is outside of the term contract as far as i can tell. You are claiming over a breach of contract but the claim isn't subject to those terms. If it were then the T&C would have to have a section in it that said when we sue you or you sue us this is what will happen. Then you could claim that the contract was unilaterally altered by the banks or was unfair.

 

At least this is how i see it.

 

This is but one of a number of arguments where it seems to me that there is confusion about what is going on when someone claims from a bank or cc company.

 

There is also confusion about the purpose of the law and the courts.

 

The bottom line is we sue the banks or whoever to get back to where we were before the charges were imposed unlawfully.

 

Asking for cash may seem reasonable but i cant see any reason why a court would allow you to maintain your debt with the bank when the refund is in effect set against that debt.

 

You would be effectively borrowing money from the bank by way of suing them.

 

JMHO

 

Glenn

 

PS i wish i were wrong, but it think anyone who went to court s9olely because the bank had settled their balance rather than give them a cheque will be wasting the courts and their own time.

[lickthewallfatboy]

GlennUK

 

I agree with you,but you put it better than I ever could have!!

[eyespy]

Hi All

 

After reading this thread I agree that if I win my claim then the overdraft should be cleared off as quick as possible with that money.

 

Im having a right old time with the Abbey. I have been told that the debt collection and complaints department are totally separate and do not look at my account as being in dispute.

 

Therefore they require my overdraft to be paid back within 28 days or it goes to a debt collection agency.

I have offered to pay the overdraft back at Christmas with my redundancy payoff, they say fine but my credit rating will still be affected dut to me having an unauthorised overdraft with no salary going into that account.

 

I have been locked out of my ebanking facility and had to return my cheque book and card. The account can not be closed until the overdarft of £1500 is cleared. But they are still putting charges onto this account for being O/D and I had 2 charges for 2 items which total £118.41!!!!!!!!!!

 

My claim is for £1300, will I still be able to get these further charges back? will they have to be another claim? Can I and when can I ask for the information sent to the credit ref agency to be taken off?

 

To be free of Shabbey Abbey is just a dream at the moment I can not wait to walk away from them.

 

Eyespy

EYespy

[meagain]

PS i wish i were wrong, but it think anyone who went to court s9olely because the bank had settled their balance rather than give them a cheque will be wasting the courts and their own time.

 

True, but then most people won't be getting an offer of full repayment until the courts are involved in the first place.

[khronus]

I have written a polite letter requesting payment in cheque form, I shall let you know how it goes. Many thanks for your time and efforts.

 

 

K

[Glenn UK]

Meagain

 

I agree, its likely that the claim will have been issued and served on the defendant, then its up to the claimant to argue that the defence should be struck out, etc.

 

Ill let you know how it goes with Abbey, my gut feeling is that i have as much chance as a snowball in hell of getting it struck out despite their abysmal abuse of process.

 

JMHO

 

Glenn

[Glenn UK]

I have written a polite letter requesting payment in cheque form, I shall let you know how it goes. Many thanks for your time and efforts.

 

 

K

 

 

Good luck and i hope my pessimism is very much misplaced.

 

Glenn

[superam]

An account i had with Barclays was very simular, my argument was £1200 unfair charges and £2100 compounded cont interest. I said they could offset the £1200 against my debt of £4500 but demanded the interest £2100 paid by cheque on the reasoning that the £2100 was what they had denied me in investing elsewhere and was nothing to do with them. They gave in and paid me out. Thats the way i would approach it.

[Glenn UK]

thats an interesting perspective superam

 

Did you claim for interest you had paid too?

 

Glenn

[lookinforinfo]

Ok Glenn, now that I know which clause you are responding to..........

[can't see how I moved the goalposts though].

Let's look at on restoring ones account to its original

position.

I appreciate that everybodies case is different but take an example of

a £1000 overdraft that ends up at £2500 with £700 of charges.

 

Whilst the account was being correctly run therefore, the customer was able

to pay in and withdraw funds without a problem, even when the account was

overdrawn by £900!!!!

 

So using your argument, surely that customer should be entitled to £2500-

£700 -£1000, to restore the situation? In other words, even if I am wrong

that the customer is entitled to all his money in a cheque, how do you counter that the customer is entitled to a cheque for £1700 to put him back

where he was?

[Glenn UK]

LFI

 

You have an overdraft of £1000, but somehow you incur £700 unlawful charges and you spend another £800 making the OD £2500?

 

If the claimant asks for the £700 unlawful charges back and gets them (I'm assuming that the £700 includes interest paid/claimed) and the overdraft is reduced to £1800 then why should they get any more back?

 

The overdraft is £800 over its limit irrespective of the charges.

 

If the claimant takes the OD to less than the agreed limit i presume the bank would allow them to operate the account (of course this is a naive view because many banks would close the account or require repayment of the OD out of spite - but this has nothing to do with asking for a cheque)

 

HTH

 

Glenn

[lookinforinfo]

You are missing the point of the analogy.

I will try again.

Overdraft £1000 charges £600 final debt £1300

 

When the account was within the overdraft limit [ie less than £1000] then the customer was free to decide how to spend the money in the account

whichever way they wanted. Yes they may have owed the bank money, but

as they were operating within the agreed terms of the overdraft, there was

no compunction to repay the overdraft there and then.

So my contention is that to return the situation to its former position, then

once the repayment takes the balance below £1000 then the option of

being given a cheque for amounts below that figure should be offered.

[lookinforinfo]

You are missing the point of the analogy.

I will try again.

Overdraft £1000 charges £600 final debt £1300

 

When the account was within the overdraft limit [ie less than £1000] then the customer was free to decide how to spend the money in the account

whichever way they wanted. Yes they may have owed the bank money, but

as they were operating within the agreed terms of the overdraft, there was

no compunction to repay the overdraft there and then.

So my contention is that to return the situation to its former position, then

once the repayment takes the balance below £1000 then the option of

being given a cheque for amounts below that figure should be offered.

[gizmo111]

You are missing the point of the analogy.

I will try again.

Overdraft £1000 charges £600 final debt £1300

 

When the account was within the overdraft limit [ie less than £1000] then the customer was free to decide how to spend the money in the account

whichever way they wanted. Yes they may have owed the bank money, but

as they were operating within the agreed terms of the overdraft, there was

no compunction to repay the overdraft there and then.

So my contention is that to return the situation to its former position, then

once the repayment takes the balance below £1000 then the option of

being given a cheque for amounts below that figure should be offered.

 

Except the bank would have probably called the overdraft in long before a cheques was due, and by the same token cash paid into a overdrawn account takes it below the limit and leaves you with the option to spend up to the limit again.

[Glenn UK]

I have to say i cant see the point of keep arguing about this, the original question was about insisting on a cheque for the repayment of a claim where the debt was larger than the claim value.

 

Assuming the bank doesn't foreclose or reduce the over draft, then paying money back into it is as good as giving them a cheque to spend anywhere else.

 

They reduce the debt and you can spend the rest by using the authorised overdraft.

 

So far we have been round the world and i cant see any legal basis for insisting on a cheque where the debt is larger than the claim, even in your example i can see a court allowing the bank to at the very least pay off the unauthorised overdraft.

 

As Gizmo said its likely that long before you get anywhere near the cheque they will foreclose the OD.

 

Id love to be agreeing with you but I still haven't seen anything anyone could rely on in court and call it a legal argument.

 

It may not be fair, it may appear to be biased in the favour of the banks, this doesn't mean it stands a snowballs chance in hell of winning.

 

Sorry and all that, but I want to be arguing and telling people its right, if you haven't convinced me it could be because I'm an arrogant SOB who wont listen. Bearing in mind i want to be convinced, it could be because a good basis for the argument hasn't been established yet.

 

JMHO

 

Glenn

[superam]

To be honest Glenn, i didnt claim back the interest i paid, was quite satisfied with cont compounded and it really seemed difficult to work out. Slap my wrists SORRY

[Glenn UK]

Superam

 

LOL, it doenst matter what i or anyone else thinks if you were happy with the claim.

 

Glenn

[meagain]

Glenn, you have a perfectly valid point, but since many people might find that due to bank incompetence, those debts may no longer be enforcible, and thus effectively rendered null and void. A claimant derives no benefit from reducing a debt that they no longer have a duty to pay. Always worth bearing in mind.