can we have a new section in the forum for links to claims with contractual interest

[Guest bong]

Hi Bong Excellent work on this thread. Just to let you know we are working on a template (word used very losely) for contractual interest and I am looking over your letters at the moment

 

cheers karne, just noticed you're offline but in case you hadn't noticed I've just posted a further amendment to cater for the mutuality & reciprocity argument.

[Bigmac versus]

Looking good bong, well done.

[bill-k]

So do you think we should revamp the whole letter? I suppose while we're at it...but would I be so bold?? :o

Oh God - sorry !!! I was only having a little fiddle. (Story of my life !!:o )

But this would be a good opportunity to do a complete rebuild, wouldn't it ? There will not be better time, and - I believe - there will not be a better person to do it.

 

Looks like you've got Karn's implied vote, too !!

 

Well done with the M & R paragraph (for Milly ?) - excellent stuff. I believe the OP responsible for M & R is still knocking about, so maybe he'll venture an opinion, yet !!!

[Guest bong]

This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer.

 

 

 

 

 

Do you have the references for this bong ?

 

It was taken from the following link (top of page 11) which defined the effect of the UTCCR (which implemented EU Directive 93/13)

 

www.unlockingthelaw.co.uk/samples/contract%20law%20chapter%201.pdf

[bill-k]

OMG - Karne's posted while I was fiddling !!

 

I'll just, er, reverse back into the woodwork, then !!

[Guest bong]

OMG - Karne's posted while I was fiddling !!

 

I'll just, er, reverse back into the woodwork, then !!

 

[Guest bong]

karne I'm printing off the templates and will check them over tomorrow if you don't mind, I'm starting to flag..

[bill-k]

Puk...puk...puk...puk...pukuuurk !!

 

Night, night, guys !!

[Guest bong]

hope you've recovered Bill:p

 

Karne, I've drafted a suggestion for the contractual interest particulars as below, I think it gives a more detailed explanation of the basis of claiming it. It includes unauthorised and authorised and statutory as alternatives. I've drafted a separate one for people only wishing to claim authorised but will await your feedback (and others) on this version before I post it.

 

I've finished with your templates now if you want to delete them, unless anyone else needs them left on for a while longer.

 

prelim looks ok, the lba you posted was actually the prelim so not sure if you've altered the lba template. Will look at the CI notes (Qs & As) later but I have them saved in word so you can delete them.

 

9. Interest claimed

 

a) The claimant claims compound interest on the charges and overdraft interest applied thereon to the claimant’s account (“the principal claim”), at the annual rate of [1] %. This is the rate currently applied by the defendant to the claimant’s unauthorised use or borrowing of the defendant’s monies, as provided for in the contract.

 

The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant’s account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, since it was clearly not in the claimant’s contemplation when entering into the contract, that the claimant would authorise the defendant to apply penalty charges and interest thereon to the claimant’s account, or to profit in an unlawful manner from the claimant’s account breaches.

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

 

Unfair Terms

5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Therefore, to satisfy the requirement of fairness, within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

b) In the alternative to 9 (a), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of [2]% per annum, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised.

 

c) In the alternative to 9 (a) and (b), if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers that the defendant would be unjustly enriched if the claimant’s entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of [2] % per annum.

 

d) In the alternative to 9 (a), (b) and ©, if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984.

 

e) Schedules showing interest calculated at the rates quoted at 9 (a), (b & c) and (d) are attached to these particulars of claim, numbered [3].

 

10. Accordingly, the claimant claims:

 

a) The return of £ [4] taken by the defendant in charges and interest applied on the charges between [5] and [6].

 

b) Court fees

 

c) Costs allowed by the court

 

d) As particularised at 9 (a), contractual interest at an annual rate of [1] % compounded daily from the date of each transaction to [6], of £ [7].

 

e) Further contractual interest at [1] % compounded daily from [6] up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently [8] per day, however as noted herein, this figure is liable to increase over time.

 

f) In the alternative to 10 (d) and (e), and as particularised at 9 (b) or ©, contractual interest at an annual rate of [2] % compounded daily from the date of each transaction to [6] of £ [9].

 

g) Further contractual interest at [2] % compounded daily from [6] up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing. An approximate amount, for guidance purposes only, is currently [10] per day, however as noted herein, this figure is liable to increase over time.

 

h) In the alternative to 10 (d) (e) (f) and (g), and as particularised at 9 (d), interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from [5] to [6] of £ [11] and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of [12].

 

 

 

Notes

 

 

1. unauthorised rate
   
2. authorised rate
   
3. number your attachments (bottom centre of each page) and insert page numbers in claim document here
   
4. total of charges and overdraft interest claimed (NOT the contractual interest)
   
5. date of earliest charge
   
6. date of claim
   
7. total contractual interest at unauthorised rate to claim date
   
8. approx daily rate of 7.
   
9. total contractual interest at authorised rate to claim date
   
10. approx daily rate of 9.
    
11. total statutory interest to claim date
    
12. daily statutory interest amount

 

I need to have a final check through to make sure all the numbering references are correct but have to go out now.

[Guest bong]

Also the bits in blue need to be deleted from the rest of the template you posted.

 

[removed]

[TANZARELLI]

POC looks good to me Bong I was able to follow that quite easily and things like that usually take me a while and a couple of reads, nothing jumps out at me but the only question is how would you work out [8] & [10] the approx daily rate including the contractual, thats confusing me. otherwise looks pretty good.

[Guest bong]

hi tanz, you would move the date forward on your spreadsheet by one day and see the difference between the two days in the total.

[TANZARELLI]

Ahh right, so just work out the difference from what your total is on present day then add a day and the difference between the two would be the daily rate?

 

Very good. Not that complicated at all then. Nice one.

 

I had aquick scan of karnevils letters this morning but had to work 11.5hrs today so not had time to read properly however saved them onto memory stick to read later, I see he's removed them now is there a timeline for when yours or his or joint effort will be in the library as an official template, or still work in progress for the minute?

[Guest bong]

Ahh right, so just work out the difference from what your total is on present day then add a day and the difference between the two would be the daily rate?

 

Very good. Not that complicated at all then. Nice one.

 

I had aquick scan of karnevils letters this morning but had to work 11.5hrs today so not had time to read properly however saved them onto memory stick to read later, I see he's removed them now is there a timeline for when yours or his or joint effort will be in the library as an official template, or still work in progress for the minute?

 

karnevil's a she (I think)

 

just add this into the old letter template

 

What I require

I calculate that you have taken £XXXXX plus £XXX which you have charged me in overdraft interest for the sum which you have taken. Total £XXXXX .

I enclose a schedule of the charges which I am claiming with this letter.

 

In addition, and as shown on the enclosed schedule of charges, I require that you pay me contractual interest on this amount at a rate of x%, totalling £xx,xxx.xx. This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. Therefore the contract term which permits the bank to charge interest on unauthorised transactions at the rate of x% is deemed to be unfair, unless there is a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer's account by the bank. For the avoidance of any doubt, my agreement to the bank's terms and conditions does not constitute authorisation to the bank to apply penalty charges (and interest thereon) to my account, or to profit in an unlawful manner out of my account breaches, and these withdrawals are therefore considered to be unauthorised.

 

The total amount therefore to be refunded to me is £xx,xxx.xx as of today’s date and interest will continue to accrue daily at the contractual rate quoted of x%.

[Glenn UK]

Bong

 

I have had a quick look at its interesting, i think its a very good start but I have to go get some sleep soon.

 

Big day tomorrow, little chap coming home hopefully and need to do the washing, housework etc.

 

Glenn

 

Ill try to look tomorrow night and see what i can glean from it or comment if i think i can add anything.

 

Thanks for the link

 

Glenn

[TANZARELLI]

Thanks Bong will wait until my new pc get fixed tommorow then I can get into my folders etc and will knock something up using this bit and then save it there.

[markj]

Hi Guys

 

Thanks Bong, does your post mean that there is now a spreadsheet knocking about which calculates S.69, authorised AND unauthorised interest rates?

 

If so where is it, I'd love to use it.

 

Many thanks

 

Mark

[Guest bong]

I have to go get some sleep soon.

 

Big day tomorrow, little chap coming home hopefully and need to do the washing, housework etc.

 

 

make sure you get a really good night's sleep - last one for months probably. Best wishes to you and your family at this exciting time. Maybe you could post his pic as an avatar?

[Guest bong]

Hi Guys

 

Thanks Bong, does your post mean that there is now a spreadsheet knocking about which calculates S.69, authorised AND unauthorised interest rates?

 

If so where is it, I'd love to use it.

 

Many thanks

 

Mark

 

I'm not the spreadie expert. You'll have to shout for Batty Bill (Bill-k)

 

BILL, ARE YOU ON DUTY TONIGHT???

[Guest bong]

He's offline at the mo mark - I'm sure he'll be along later to sort you out with a suitable spreadie

[markj]

Thanks Bong

[millymollymoo]

How about this Milly -

 

This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. Therefore the contract term which permits the bank to charge interest on unauthorised transactions at the rate of x% is deemed to be unfair, unless there is a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer's account by the bank. For the avoidance of any doubt, my agreement to the bank's terms and conditions does not constitute authorisation to the bank to apply penalty charges (and interest thereon) to my account, or to profit in an unlawful manner out of my account breaches, and these withdrawals are therefore considered to be unauthorised.

 

 

Let me know what you think...

 

 

Wow bong , brilliant way of putting the argument across:) , soz been busy with my two year old and missed this, he says he's got 'chicken flu' I had to laugh:-) , he's got toncillitis at the mo, cold cough etc and he heard me and O/H talking about bird flu then chicken pox that is going around his pre school an his assumption is that he has 'chicken flu'

 

They do make you laugh:D

 

 

Milly X

[TANZARELLI]

Congrats Glenn on the birth of your son.

 

Tanz

[Glenn UK]

Tanz and Karne

 

thanks just sorting out my papers for my AQ tomorrow with abbey.

 

Glenn

[millymollymoo]

Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

 

Annex

 

TERMS REFERRED TO IN ARTICLE 3 (3)

 

1. Terms which have the object or effect of:

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation

Hi

Could this bit above in red be related to using against penalty charges in my argument???

Milly X