HSBC court hearing, claiming Contractual Interest -*** WON ***

[lateralus]

just going to put this here -

i'm not saying do the n244, i'm not saying don't do the n244,

i am saying if you do the n244 - do it correctly - follow all the steps in this post: The "Claim Too vague" defence and guide to amending a claim (1 2 3 4 5 ... Last Page)

it's a step by step of how to do the form and what to do with it - right down to re-serving the paperwork yourself to dg and a follow up form to the court saying you have re-served it.

 

i'm just not up on ci - but seems to me - unless you poc's are really screwed up - could you not just use 8% as a fall back position as that is how the poc's should word anyway - if you've screwed up on the ci - you could tell them - when they point it out - ok, then i'll accept 8%. maybe that's not smart - i really don't know.

 

my main purpose for posting is to say if you do the amendment - do it correctly following that link.

[kelseow]

Just read the first page of the thread that Lateralus suggested and if the courts/DG haven't said that your POC is vague/or no explaination, do i actually need to amend anything??

 

or they waiting to get me in court and take me to the cleaners???

[kelseow]

right now reading, it seems that if DG were going to come after me over my POC they would have brought it up in their defence.. so i've dug that out and here is what they have said.....

 

kelseow vs HSBC

 

1. the claimant's account is governed by the defendant's personal and/or business banking terms and conditions.

 

2. pursuant to the defendant's terms and conditions the defendant is entitled to make a charge for its services as set out in the defendants price list, including an overdraft review fee for considering whether to provide and providing and overdraft.

 

3. the defendant denies that the charges applied to the claimant's account amount to penalties at common law and/or unfiar contract terms for the purposes of the unfair terms in consumer regulations 1999 (UTCCRs)

 

4. the charges applied to the claiments account are reasonable and are properly and fully disclosed in the defendants terms and conditions and published price list. the charges represent the contractually agreed price for the services provided and the UTCCRs are not applicable to them; alternatively, they are not unfair contary to the UTCCRs. further, the charges are nor default charges and, accordingly, cannot amount to a penalty.

 

5. save as set out above, each and every allegation made by the claimant is denied. for the reasons set out above, it is denied that the claimant is entitled to the relief claimed or any relief.

 

 

with that in mind.... what do i need to do? do i need to make amendments?

what should be my next action?

 

Let me know your thoughts and i will get cracking on what to do next...

 

thanks guys

 

Kerry

[Celicaman]

ok first off, the defence will be/ is a basic reply to your claim as is probably the same reply to everybody. I doubt if they ever read your claim, thats why the first paragraph states 'the claimants personal and / or business conditions,' they havent even looked at what the claim is about. Mine says the same thing

 

you have put in the revised POC that you are claiming CI at 29.7 %. in your claim you asked for 18.3% which is far more acceptable than 29.7% which could be deemed as profiteering ( you are not a bank LOL) CI will be hard enough to justify without going overboard. Take a look at bongs thread, she got 9.3% (?) and did well to get that. moreso she got 13 years worth.

Whatever you get over the 8% Stat is bonus time.

 

I think it may be worth asking one of the mods to run over this as this really is more than my little experience can justify if im wrong. Crusher i believe is on holiday will see who else is around.

cm

[kelseow]

morning, the new poc was just a example of a CI POC, not mine, i've not even amended mine yet, was looking at that one and trying to sus out what to take from there and add to mine... if you see what i mean....

 

i will only be claiming 18.3%, but need to amend the POC so that i am asking for the 18.3 but if not that then the stat 8% and then i need to find information which backs up the claim for the 18.3%

 

Hope i am now making sense. whatever happens i need to get this out tonight so that it gives DG a chance to have another look and then cough up my money before the court.

[Celicaman]

Kelly i sent you a PM last night

[kelseow]

hello CM, yeah i got your message, but not sure what you mean and how to .... er sort it out???

 

point me in the right direction please.

 

Yeah I know i am dippy!

[kelseow]

see, i;ve now corrected that item that you highlighted for me..

 

chat later i'm leaving work now!!

[kelseow]

Mr paranoid, question for ya, if your still getting hit with bank charges, can i continue to add them now i am at the court stage?

[kelseow]

also... with the contractual interest, i've being using the totals in my spreadsheets at the dates imputed, so contractual interest up to 18/03/07, can i charge them the additional interest since then? how does that bit work, i've not mentioned it before..

 

help?

[kelseow]

right, i've done the POC including the daily interest rate, if i can't do that bit i will delete it off....

let me know if its ok, ignore the bits in yellow, thats for me to change, but can you let me know if the bits in pink are relevent to me?

 

1. The claimant has a bank account xxxxxxxx (branch sort code xx-xx-xx) with the defendant, governed by the defendant’s Personal Banking Terms and Conditions (“the contract”).

2. The claimant admits to breaches of the terms of the contract that require the claimant to stay within any agreed overdraft limit.

3. The breaches have led to the defendant debiting the account with numerous default charges, and interest on the default charges, between 02/01/2001 and 09/03/2007. A list of the charges and interest on the charges is annexed to the Particulars of Claim at pages 1 & 2.

4. The defendant has declined to answer the claimant’s written requests for information about any manual intervention necessitated by, and/or any administrative costs incurred as a result of, the said breaches. The claimant avers that the defendant’s default charges are not intended to represent any alleged actual loss, but instead unjustly enrich the defendant, which exercises the contractual term in respect of such charges with a view to profit.

5. The claimant will rely on a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006, as evidence that the defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to account defaults.

6. The claimant will further rely on the statement of the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

a.The OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current account agreements.

b. In a consumer contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual consumer in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.

c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.

7. Accordingly the defendant’s default charges are:

a.A penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the defendant and therefore contrary to common law - Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

b.Invalid under s.4 Unfair Contract Terms Act 1977.

c.In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982.

8. The claimant is seeking the return of charges totalling £2,339.50.

9. The claimant seeks permission to proceed with the claim under s.32 (1)(b) Limitation Act 1980 on the ground that the claimant could not reasonably have discovered the defendant’s deliberate concealment of the facts relevant to the claimant’s right of action before the report of the OFT was published on 5/4/2006.

The facts relevant to the claimant’s right of action are that the defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the defendant can be seen to have been operating without accountability to its customers, and to have consciously concealed the facts. The defendant is clearly in a privileged position to have a direct means of withdrawing monies from the claimant’s bank account. The claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the defendant will always conduct itself with integrity.

10. Alternatively, the claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the ground that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

11. The claimant claims compound interest on the amounts claimed - using the rate and method specified in the said contract, and applied by the defendant to monies it is owed. A schedule of the interest calculated is annexed to the Particulars of Claim at pages 3 & 4.

The claimant’s ground for seeking restitution of the compounded contractual rate of interest is 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 commercial compounded rates.

 

 

12. Alternatively, if the court decides that the claimant is not entitled to the contractual rate of interest, then the claimant claims interest under s.69 County Courts Act 1984. A schedule of the interest calculated is annexed to the Particulars of Claim at pages 5 & 6.

13. Accordingly, the claimant claims:

a. The return of £2,339.50 taken by the defendant in charges applied on the charges between 02/01/2001 and 09/03/2007.

b. Court fees

c. Compound interest at the contractual rate of 18.3% EAR from 02/01/2001 to 13/11/2006 of £781.43, and also interest compounded at the same percentage rate up to the date of judgement or earlier payment.

d. In the alternative to c., interest under s.69 County Courts Act 1984 at the rate of 8% a year, from 02/01/2001to 09/03/2007 of £7341.61 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 42p.

[Celicaman]

Mr paranoid, question for ya, if your still getting hit with bank charges, can i continue to add them now i am at the court stage?

 

Hi, I dont think you can add them now, you can add them up to the point of claim, Oh dear , it looks like you will have to do another claim for all the additional charges. If you were to add them now the bank have not had the chance to say no, we know they would say no but you got to give them the chance to say no, You know.

Cm

[Celicaman]

Quote from your other post i gotta laugh

 

'not sure what the ligimatation act is...'

 

I take it you not a typist in this life, you getting your mucking murds fuddled LOL :grin: try limitations act, thats the one you may need for your very early claims if the bank pick up on it, but they havent .....yet. Look up parts S32 part 2 (B) & © of ;imitations act, just in case

 

still working on rest of it, i havent gone this far yet, but have read enough to partly know, im just trying to confirm to myself i understand it before i tell you its right or wrong..

Listen to others who maybe have been there

 

Are you all ganging up on me, im sure you are ..........

 

Mr Paranoid

 

CM

[lateralus]

i see you've had some help from peeps on both threads -

i can't comment as i really don't know anything about ci - but if you decide to amend - you should do it the sooner the better - and follow that link i gave you in an earlier post (post 51) for step by steps through the amending process. you do the amendment form - using your new particulars - submit it to the court - a judge reviews it and ok's it - it then comes back to you and you are responsible for re-serving it to dg - plus one more form telling the court that you have done so. has to all be done correctly - might be an idea to do the n244 and then take it round to your court if it's not far - and they can guide you and let you know if it's all ok.

[kelseow]

lol. i'm not a typist, per say, but i am on the pc all day doing my job, only problem is i type very fast, but what my brain and fingers do are two very different things at times. i'll be thinking one thing and write something completely different, sometimes have the same problems with my mouth!!! gets me into so much trouble. Right, with what you have now said, i will remove the daily interest bit, and not include any further charges.. thats fine, its only about £50 which once i've won, i'll drop a little letter to Colin Langdale and ask for them back....

 

But apart from that the POC looks ok? i'll get this printed and posted tonight if all OK.

 

Me... gang up on you???? never.. just seems your a bit more knowledgeable on this matter then me and very helpful (now is that sucking up or what!!!!!)

[kelseow]

was thinking on the way to work this morning, what about if i leave everything as it as, but submit the information i have within the court bundle? could that be done?

My husband is at home tomorrow so i could get him to take the N244 to the local court house and get the ball rolling with the amendments. let me know.

 

cheers

[kelseow]

just read this on the Financial News & Personal Finance Guides, Advice and Calculators | This is Money website... i know for a fact HSBC have hit me with bank charges for going overdrawn by as little as £5!!

 

HSBC has staggered fees and won't charge you more than you are overdrawn if it is under £30 and Lloyds TSB limits you to three charges a month. Alliance & Leicester, though, will charge you £50 a month for the unauthorised overdraft and then add on unlimited unpaid and paid item fees. Abbey charges £20 for the overdraft and then unlimited item fees, but if you can prove it was a mistake, they will let you off.

[Celicaman]

Sorry kelly was not able to spend time before late tonight,to look over things properly. Looks ok i think with new bits in and presuming all the parts are related to your claim. As Lattie says, ask at the court for them to have a look over it, they probably have any advise, and any parts the judge don like he will point out before allowing for resubmission. As it based upon previous POC's it should be ok.

Good luck, i will be watching how you get on.

You know where i am if you need help, ( if i can)

 

CM

[kelseow]

Well, in the meantime i have sent another nudge letter to DG, but tonight I will sort out the POC, i've next tuesday off work, so i'll go down to the Courts with the new POC, see if someone can advise if it all looks OK and then submit it.

Really wanna get this one over and done with, so i know what i am doing for the next two i have.... Halifax and First Direct, but even though i've sent off the SAR| requests with cheques over 3 weeks ago, nothing has been banked, and i've heard nothing from either bank and as these are closed accounts when i phone up about them, no-one seems to be able to help due to the fact that they are closed...

 

so hopfully i havent been wating for 3 weeks for nothing.

[kelseow]

Help, I've just spoken to my local court and due to the hearing being close and that the Court bundle got to be in by next week, they says its too late for the N244 to be submitted, i could try and get it out through for £65 but she doubts the judge would see it in time to allow the amendments...

 

Would should i do now? do i still with what is already been done, and submit extra evidence in the court bundle? could that work???

 

Any help would be greatly appreciated?

 

worse case senerio, if i was to get thrown out, would i be able to appeal or do another claim and still add all the court fees extra to the new claim???

[Celicaman]

Ive PM 'd you

[kelseow]

just checked my mail box and nothing is there, could you resend it for me please.

 

cheers

 

 

K

[Celicaman]

just checked my mail box and nothing is there, could you resend it for me please.

 

cheers

 

 

K

 

well i was still writing it silly

so it should be there now

[kelseow]

Got it - thank you! i've also PM'ed a few Mod's like HSBCrusher, to see what they think... so basically if i make my court bundle and add loads of evidence etc to make it stand up in court then i should be OK??

 

Cheers for your advice

 

x

[Celicaman]

Got it - thank you! i've also PM'ed a few Mod's like HSBCrusher, to see what they think... so basically if i make my court bundle and add loads of evidence etc to make it stand up in court then i should be OK??

 

Cheers for your advice

 

x

 

Absolutley, Hopefully all a complete waste of time as it wont ever be seen, but what the hell.

I posted on freakyleaky thread as to whether sending bundle to them earlier would make any difference to when they send an offer..........well it was worth a laugh...

 

Good Luck, keep us informed

 

CM