give_me_it_back vs Abbey WON!!! YAY !!! *SETTLED IN FULL*

[give_me_it_back]

Hi everyone. I have written a covering letter for the solicitor who is going to represent me. I have tried to write a potted version of what this whole process is about, and why we are in the right.

 

I would really appreciate any comments..:

 

Following my recent conversation with your colleague last week, I am pleased to enclose all the documentation in relation to the two small claims actions I have raised against Barclaycard and Abbey, whom I bank with.

 

The return date is 27th September, and, judging by other similar cases, the indication is that they will both say they intend to defend. The preliminary date is set for 4th October, when I will unfortunately be on holiday (copy of my flight details enclosed). I spoke to the Court to request a later date, but they have advised that the date cannot be changed, and I should appoint someone to appear on my behalf. I would be grateful if you would represent me on 4th October at xxxxxxx and look forward to hearing what your fee will be for this.

 

I understand that your fees may be re-claimed once the case is won, however, as I fully expected to be able to represent myself, I did not make a claim for this in the original documentation I sent to the court. Could you please advise me how I should do this?

 

There have been many similar actions recently, and they all tend to follow the same pattern. Very often, the bank’s representative does not appear, and the case is won by default. However, there have been a couple of cases (particularly in Scotland) where a bank representative does appear, normally in an attempt to buy more time by using stalling tactics, such as “show us a copy of (their own!) our terms and conditions”. To date, not one case has been lost by the persuer and every bank has paid the charges back in full (to date, over £1million).

 

The charges in question are made when the customer exceed limits or returns cheques/direct debits, and it is my view that these are penalty charges which far exceed the actual loss suffered by the bank. It is unlawful for these charges to produce profit for the banks.

 

The OFT statement (enclosed) has also criticised the current level of bank charges being unfair under the Unfair Terms in Consumer Contracts Regulations 1999.

 

The statement clearly confirms that any default charges which were set at a level which exceeded administrative costs were unfair and that the OFT has confirmed very clearly the right of individual customers to seek redress in the courts in particular cases.

 

Many of the banks have now reduced their charges to £12, but are still misleading customers by reporting that this is the “OFT recommended charge”. In fact, the OFT £12 guideline was not intended to be a measure of fairness, but a maximum limit which the OFT would be prepared to tolerate before taking its own direct action.

 

I am very disappointed that I cannot be in court to defend my case on 4th October as there are many questions which, if given the opportunity, I would pose to the bank in order to gain a clearer understanding of a genuine pre-estimate of costs. These questions are:

 

• How many individual actions do their computers deal with in a year?

 

• What does it cost to install and maintain these?

 

• How many staff deal directly with breaches of contract?

 

• Do they have any evidence of manual intervention?

 

I doubt if the bank would be willing, or able, to answer these questions. However, if they were, then some simple calculations would show that their computers deal with (XX million) actions per year and cost, on average, (£xx) per year to run. This would then give an accurate cost for each computer transaction.

[charlieho]

Just in case your solicitiors are not familiar with the case law (They or may not be but it might help to explain to them in full on what basis the charges are unlawfull) you can instruct them to have a look at the Govan Law Centre where I found this

 

 

1. 
   
   1. The defenders charges represent a contractual penalty or fine and as such are irrecoverable at Scots common law. In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses which flowed from a breach of contract. The defenders charges are not liquidated losses and therefore the pursuer is entitled to be reimbursed in the sum craved.
      
   2. Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:
      ‘Indicative and non-exhaustive list of terms which may be regarded as unfair
      1. Terms which have the object of effect of-
      (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.
      Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:
      OFT case 15 – Kids of Wilmslow Ltd.
      Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.
      OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.
      A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.
      OFT case 4 – Dampcure-Woodcure/30Ltd.
      Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.
      Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTTC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.

[give_me_it_back]

Thanks very much indeed.

[give_me_it_back]

I have eventually received the microfiched statements. I have worked out the details, and, although it's not a huge amount, it adds up. This lot comes to £204. Now, here's the thing...

 

If I add this 204 to the original claim I already have in (547), it comes to £751!! The limit in Scotland is 750 (I am assuming I am right in thinking that £750 DOESN'T include interest, court fees and any other charges?)

 

What do you all think I should do? Amend my claim and put it in for the 750 (give them the £!), or wait until the first one is paid out, then start a fresh claim?

 

If I amend the claim, how much will it cost, and will it change the preliminary hearing date?

 

Thanks very much everyone.

[give_me_it_back]

...bump..? Thanks!

[give_me_it_back]

Ok.

 

I called the court and asked them if I could amend the claim, how much it would cost and would it alter the date.

 

The answer is I can't amend the claim now, as Abbey will have been served.

 

Once I get this claim through, I will start the next one.

[give_me_it_back]

I have received a letter from DLA Piper. Abbey say the charges were 'contractually agreed and are a genuine pre-estimate of the loss incurred by the bank as a result of my breach". They say they will be able to prove that they did suffer loss and damage. HOWEVER, they then go on to admit that "they are not entitled to the full amount and will be able to establish a large percentage of the charges". They are offering £315 as full and final settlement.

 

I am refusing of course!

 

Any comments?

 

I have to drop the letter in to my solicitor NOW - so - if anyone is going to reply, could you please reply as soon as possible...

[msneddon]

Their letter is the exact same as the one they sent me. I wrote back on Monday to refuse and informed them that I will proceed with court action while I await the proof to be forwarded to show the charges are justifyable in relation to the amounts they have taken from me.

[give_me_it_back]

Great! We're all 'singing from the same hymn sheet' then! They've SUCH a nerve - AND they only give us 7 days to accept! Hardly reasonable!

[give_me_it_back]

Just to remind you all that I am still here... still waiting for Abbey to come back to say whether they intend to defend (they have until 27th September). I have hired a solicitor to represent me on 4th October.

 

I also got a letter from IC (as others have) following my complaint to them about microfiche/DPA. I can't locate the letter at the moment, but I know they are due to investigate about now... Can anyone remember when? Also, is there a separate thread in relation to this? I don't want to miss the news of what their findings are...

[give_me_it_back]

I have now received a letter from DLA Piper:

 

"We confirm that we have arranged for the Section B - Defenders' response to the summons... we will arrange for appearance when the matter calls on 4 October. In the meantime, perhaps you would confirm what would be an appropriate offer to allow this matter to settle without further rercourse to Court."

 

Of course, I will say that I expect the full amount - nothing less. Has anyone else had a similar letter?

[msneddon]

I have now received a letter from DLA Piper:

 

"We confirm that we have arranged for the Section B - Defenders' response to the summons... we will arrange for appearance when the matter calls on 4 October. In the meantime, perhaps you would confirm what would be an appropriate offer to allow this matter to settle without further rercourse to Court."

 

Of course, I will say that I expect the full amount - nothing less. Has anyone else had a similar letter?

I have had no other contact with DLA Piper after thier 50% offer and rediculous defence statment. Which was refused and defence challenged. My return date is 21st Sept and hearing date 28th Sept.

[give_me_it_back]

What was their defence statement? Did they actually issue a written statement to you prior the the first hearing? What did you respond with to challenge it?

[msneddon]

They would be defending the claim on 2 counts 1. that the charges were contractually agreed and are not penaltys 2. they will be able to show thatAbbey suffered loss as a result of my breach of contract and will be able to establish that a high percentage of the charges remain due. I informed them that I would be more than glad for them to disclose how mutch my breach had cost them and if they were not forthcoming with the information I would point out to the judge that that they had failed to stop the court hearing by withholding information that could prove to be in their favour. I have posted the details of a letter I recieved today on the Abbey forum. I need some help and advice . Please take a look and give feedback

[lesser1010]

hi,i've been on the abbey forum but can't find the letter you say you've posted.

[give_me_it_back]

Lesser1010 - it's here : http://www.consumeractiongroup.co.uk/forum/abbey-bank/26674-recieved-offer-abbey-solicitors.html

 

Msneddon - do NOT sign their ransom note! Write your own letter saying you accept the payment (for THIS case), but NOT their terms!

[msneddon]

Thanks for the advice. I will go with that. I'll keep you posted

[give_me_it_back]

I have just had a thought... The letter I have sent to DLA Piper states that I will only accept the full amount as 'full and final' payment.

 

I did NOT state 'in relation to this case'.

 

Does anyone think I have now stuffed myself for my next claim?? I still have another £204 to claim once this one is settled (I'm in Scotland, so have to claim separately).

 

I hope not... Should I write to DLA Piper again clarifying this, or just wait until they cough up and write that time making it clear that I accept the full amount ON THIS CLAIM, but reserve the right to sue again...?

[give_me_it_back]

bump... anyone??

[msneddon]

send them another letter to highlight this or you may recieve the same reply and fully prepared discharch statment enclosed, that I did.

[give_me_it_back]

I GOT A LETTER FROM DLA PIPER - OFFERING THE FULL AMOUNT!!

 

However... they ask that I sign a discharge in Abbey's favour - NO thanks! I still have another £204 to go after also, so this is not the final time they will hear from me.

 

Also, they say that they note that I have instructed a solicitor and they can only now correspond with him. I have only asked him to appear in my place at the court (as I won't be here).

 

So, should I now write and say:

A) Thanks, but I won't sign a discharge.

B) I am still handling this myself, and only asked my solicitor to APPEAR in court on 4th October.

 

Is that right?

 

Feels SO good to be nearly there!

[give_me_it_back]

Ok - how does this letter sound? Please advise...

 

Thank you for your letter dated 19th September 2006.

 

I note your offer of £625.66, which is subject to signing a Discharge in favour of your client, Abbey. I am afraid these terms are not acceptable to me.

 

I cannot sign the Discharge, and I cannot confirm that I will not raise any further claims against your client.

 

I would also like to clarify that I am still handling this case myself, and my solicitor will only be instructed to appear on my behalf in court on 4th October (as I am not in the country) if this is deemed appropriate.

 

I trust this clarifies my position.

 

I look forward to hearing from you before 27th September.

[CJ&theBOS]

Ok - how does this letter sound? Please advise...

 

Thank you for your letter dated 19th September 2006.

 

I note your offer of £625.66, which is subject to signing a Discharge in favour of your client, Abbey. I am afraid these terms are not acceptable to me.

 

I cannot sign the Discharge, and I cannot confirm that I will not raise any further claims against your client.

 

I would also like to clarify that I am still handling this case myself, and my solicitor will only be instructed to appear on my behalf in court on 4th October (as I am not in the country) if this is deemed appropriate.

 

I trust this clarifies my position.

 

I look forward to hearing from you before 27th September.

 

What kind of discharge is it? Confidentiality clause? Does it prevent you making any other future claims against Abbey?

 

You could accept it only insofar as it relates to this action brought against them and it would have no bearing on separate claims being raised. Indeed why should it?

[give_me_it_back]

It states:

".. which is full and final settlement of satisfaction of all claims whatsoever nature, relating to charges applied to the aforementioned account up to and including the date hereof... in respect of all or any loss sustained by me consequent upon any charges applied to the aforementioned account number.."

 

The letter states:

 

".. this is acceptable on the understanding that the Court action is dismissed and you sign a Discharge in Abbey's favour. In the circumstances, we have therefore taken the opportunity to enclose herewith a Joint Incidental Application and Joint Minute discharging the Court action and a Discharge for your signature."

 

So, to me, it looks as though this would prevent me from raising any further action against them..?

[CJ&theBOS]

It states:

".. which is full and final settlement of satisfaction of all claims whatsoever nature, relating to charges applied to the aforementioned account up to and including the date hereof... in respect of all or any loss sustained by me consequent upon any charges applied to the aforementioned account number.."

 

The letter states:

 

".. this is acceptable on the understanding that the Court action is dismissed and you sign a Discharge in Abbey's favour. In the circumstances, we have therefore taken the opportunity to enclose herewith a Joint Incidental Application and Joint Minute discharging the Court action and a Discharge for your signature."

 

So, to me, it looks as though this would prevent me from raising any further action against them..?

 

 

hrmm maybe. Note that it says this though "relating to charges applied to the aforementioned account up to and including the date hereof"

 

So it is saying you cant claim again for any charges prior to this date. Therefore it is fine to raise action for any new future charges that the bank may inflict on your account. Or does it???

 

or maybe it is just legal waffle maybe see if someone else can comment

 

 

In my case with HBOS. I will probably raise another action with them because i have only claimed up to 31/7/06 and im sure they have put charges on my account after this date.