Contractual Interest - Precedent - LOST

[photoman]

Steven

 

I am sort of coming around to your way of thinking here.

 

Initially, I felt that I wanted to disagree with your interpretation of how the money you "owed" a credit card (or even a bank for that matter) could be considered by them as an "asset" if it had not actually been paid?

 

Now, after a bit of reading up and much thought, I am considering the following reasoning:

 

Even though the indebtedness is not actually paid, it could still be considered as an assett by the lender, as it infers upon them the security and confidence they require to be able to lend money to others, knowing that they already have yours due.

This is especially true when you consider the T&C's which stipulate that any indebtedness is repayable in full upon demand, in effect bestowing upon the debt a status similar to that of cash !

 

Not 100% sure about this yet though, so thoughts anyone ??

 

PM

[steven4064]

I think the easiest way to see it is to think in terms of your business balance sheet - debtors go in the assets column, creditors in the liabilities column. Then apply this definition from the Theft (Amendments) Act 1996 (now repealed but the definition is good)

15 A…

(2)A money transfer occurs when-

(a) a debit is made to one account,

(b) a credit is made to another, and

© the credit results from the debit or the debit results from the credit.

(3) References to a credit and to a debit are to a credit of an amount of money and to a debit of an amount of money.

(4) It is immaterial (in particular)-

(a) whether the amount credited is the same as the amount debited;

(b) whether the money transfer is effected on presentment of a cheque or by another method;

© whether any delay occurs in the process by which the money transfer is effected;

(d) whether any intermediate credits or debits are made in the course of the money transfer;

(e) whether either of the accounts is overdrawn before or after the money transfer is effected

subsection (4)(e) is particularly pertinent to the case in point.

[andrew1]

Steven

 

I am sort of coming around to your way of thinking here.

 

Initially, I felt that I wanted to disagree with your interpretation of how the money you "owed" a credit card (or even a bank for that matter) could be considered by them as an "asset" if it had not actually been paid?

 

Now, after a bit of reading up and much thought, I am considering the following reasoning:

 

Even though the indebtedness is not actually paid, it could still be considered as an assett by the lender, as it infers upon them the security and confidence they require to be able to lend money to others, knowing that they already have yours due.

This is especially true when you consider the T&C's which stipulate that any indebtedness is repayable in full upon demand, in effect bestowing upon the debt a status similar to that of cash !

 

Not 100% sure about this yet though, so thoughts anyone ??

 

PM

 

 

This actually goes back to the securitisation I mentioned earlier PM that MBNA do. It's almost like a factoring agreement. The bank will give a business (for example) 80% of their outstanding invoices value as cash until the invoice is paid, when they pay the remaining 20% less interest ( for the period it was outstanding) and charges. Your point reflects that. Now those invoices are deemed an asset, just like any debtors ledger. Not sure if this helps with this debate, but just a thought (2p worth!).

 

Sarah

[steven4064]

Thanks Sarah. And emember that none of it is real money (ie notes), it all exists in lines in an account. So whether you are in credit or debit, and whether the debit is more than the charges is all irelevant IMHO.

 

A debit to your account = money taken out of your account. Full stop.

[Fred_Funk]

I'm not sure I agree with this. The bank will have debited your account and correspondingly credited themselves, and this money will have appeared in their accounts as an asset, indistinguishable from other assets.

 

I think they will have thought themselves quite at liberty to lend this 'money' to others at interest on that basis. The fact that you never actually paid them any actual money (ie in used fivers) is not relevant. At the level we are talking about no money actually exists! It is all in computerised accounts somewhere.

 

steven4064

 

Hi! Just to clarify: in light of what you've written above, are you now saying - contrary to your PM in which you said you agreed with what GaryH had said in post #395 - that you do think a bona fide case can be made for 'time value interest' even in instances where one's outstanding balance was always more than the total of the unlawful charges levied?

 

Or am I getting my wires crossed, again?! ;-)

 

Thanks in anticipation

Fred_Funk

[GaryH]

Thanks Sarah. And emember that none of it is real money (ie notes), it all exists in lines in an account. So whether you are in credit or debit, and whether the debit is more than the charges is all irelevant IMHO.

 

A debit to your account = money taken out of your account. Full stop.

Good points. Its certainly a strong argument and I wouldn't disagree with any of the posts above.

[TANZARELLI]

If the £25 in my example above was demanded but never actually paid, and was just added to the balance due, all the time accruing 'demonstrable' interest on top, then when it came to claiming you would be entitled to claim for the charge plus the added demonstrable interest but NOT time value interest on top of that. They have never derived further benefit from the money, nor would you have been deprived of it - simply, as you say, because it was never actually paid, only (they say) owed.

 

Obviously then it requires a bit of extra thought with CC claims, particularly in relation to calculations, but if the charges were paid on demand then IMO the Sempra principles undoubtably directly apply - arguably even more so than for current account charges.

 

I agree Gary. In my case though I took out a loan to pay off the full balanve of my Barclaycard which included credit balance and also chagres (obviously before I had the knowledge about reclaiming), so this would make my claim slightly different in terms of they have had use of my money including paid unlawful charges and debit interest on those charges also, plus time value on top also.

 

Tanz

[steven4064]

steven4064

 

Hi! Just to clarify: in light of what you've written above, are you now saying - contrary to your PM in which you said you agreed with what GaryH had said in post #395 - that you do think a bona fide case can be made for 'time value interest' even in instances where one's outstanding balance was always more than the total of the unlawful charges levied?

 

Or am I getting my wires crossed, again?! ;-)

 

Thanks in anticipation

Fred_Funk

Fred

 

Gary's post #395 covers several points. Our discussion via PM was about claiming 'time value interest' on top of 'demonstrable interest' and I agreed with everything Gary said on that. I wasn't really commenting on the rest of Gary's post which was about claiming 'time value interest' on money 'owed' rather than 'paid'.

 

I think we have now agreed that "money 'owed' rather than 'paid'" is a false distinction - I always thought so and have posted on the subject before (don't ask me where ). My view has always been " A debit to your account = money taken out of your account. Full stop" as posted above.

[Fred_Funk]

Fred

 

Gary's post #395 covers several points. Our discussion via PM was about claiming 'time value interest' on top of 'demonstrable interest' and I agreed with everything Gary said on that. I wasn't really commenting on the rest of Gary's post which was about claiming 'time value interest' on money 'owed' rather than 'paid'.

 

I think we have now agreed that "money 'owed' rather than 'paid'" is a false distinction - I always thought so and have posted on the subject before (don't ask me where ). My view has always been " A debit to your account = money taken out of your account. Full stop" as posted above.

 

Thanks for the clarification Steven.

 

So, in essence, you're saying you agree, wholeheartedly with this para...

 

When you breach your CC account contract by, say, exceeding your overdraft limit, on your next statement you'll get a balance summary stating how much your contractually obliged to pay by x date the next month. Then seperately they will also tell you you have exceeded your overdraft limit and so you must in addition pay a penalty of (assuming pre 2006) £25 by x date. That is an (we say) unlawful demand, one which is seperate from the rest of your balance or any contractual requirement to reduce it. If you then pay the £25, the money has wrongfully passed from you to them and when reclaiming you have the right to restitution of the time value of that £25 as well as the £25 itself. If you have also paid interest on top of the charge (demonstrable interest/default interest/debited interest, etc.) then IMO you have every right to recover that too with the time value interest on top, in exactly the same way as is the case in current account claims.

 

... but that you'd take iss ue with this one...

In the hypothetical example you gave though then I think your 100% correct. If the £25 in my example above was demanded but never actually paid, and was just added to the balance due, all the time accruing 'demonstrable' interest on top, then when it came to claiming you would be entitled to claim for the charge plus the added demonstrable interest but NOT time value interest on top of that. They have never derived further benefit from the money, nor would you have been deprived of it - simply, as you say, because it was never actually paid, only (they say) owed.

 

... with which GaryH himself has subsequently said he may think again on.

 

Thanks again

Fred_Funk

[steven4064]

Yes.

[Ms Ellie]

Hello Tanz, glad to know you are ok on here then?

[TANZARELLI]

Hello Tanz, glad to know you are ok on here then?

 

Hi Ms Ellie,

 

Yes and will be available for a grilling soon fear not. I actually post on about 5 sites altogether although not been spending to much time on any at moment. Work as you know.

 

Things will calm down next week so get the sofa warmed up for me.:o

[Fred_Funk]

Thought I'd revive this thread as it seemed as good a place as anywhere to ask, lol...

 

Just about to hit Barclaycard with my prelim letter and keen to ask for CI on the basis of their unjust enrichment, citing Sempra, etc, etc.

 

The thing is, I'm still unclear as to what rate of interest I should be using. steven4064 suggests one should use Barclaycard's authorised borrowing rate, as opposed to its unauthorised one - and, given his level of expertise - I'm happy to go along with this.

 

However, as far as I can ascertain from my statements, I was only ever charged at Barclaycard's standard 'monthly interest rate' - which tended to be around the 1.6% mark - regardless of whether or not I was in default.

 

I take it then, this is the rate I should use when calculating CI?!

 

One final thing, can anyone help me by providing a link to a good spreadsheet for such calculations?

 

Thanks in anticipation

Fred_Funk

[**Tilly**]

Hi Fred

 

Try this one for your spreadsheet

 

 

http://www.shweb.pwp.blueyonder. co...erestcalcs.xls

 

 

 

 

 

Tilly

[steven4064]

That's 1.6%/month which is an APR of 21% - I would go with thaat.