elseg vs LLoyds TSB

[elseg]

was due in court yesterday, but last week recieved notification of a stay being put on the case.

I used the appeals here, and took it to the court last Tuesday (I obviously had not recieved any court bundle from SC&M), and had written to them, and the court about that too.

I am waiting to see if I will be called to appear before the judg.

I am a single mum to a child with cystic fibrosis (she gets DLA at the highest rate) and a baby - if I am going along the financial hardship, should I take them with me to court (and ask daughter to look particularly ill that day!!)

 

E

[jansus]

FSA grants waiver to firms on complaints handling

 

 

Clive Briault

 

We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way.

 

 

 

 

FSA/PN/090/2007

27 July 2007

The Financial Services Authority (FSA) today (Friday 27 July) issued a 'waiver' from its complaints handling rules that apply to unauthorised overdraft charges complaints. This follows the decision by the Office of Fair Trading (OFT) and some firms to initiate a test case in the High Court to resolve legal uncertainties on the application of the law to these charges.

This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow.

Clive Briault, Managing Director, Retail Markets, said:

"The FSA supports the test case on unauthorised overdraft charges as the current situation does not provide certainty or consistency for consumers or firms.

"We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges, complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to."

The conditions in the waiver include dealing promptly with complaints once clarity is achieved and communicating clearly with consumers throughout the process. The FSA also expects firms to continue to help their customers avoid incurring unauthorised overdraft charges in the first instance and to continue to deal with hardship cases.

The FSA will review the waiver in two months time to ensure, among other things, that firms are complying with its conditions. The FSA can also revoke the waiver at any time if it considers that the waiver is no longer appropriate, for example if progress on the test case is not being made or if a delay in the resolution of the test case is likely to cause undue risk to consumers.

The FSA will publish later today the results of thematic work on how firms are currently handling complaints on unauthorised overdraft charges. Practices varied across the visited firms, but in some the FSA found significant deficiencies and important areas of weakness in their approach. These included:

• a failure to respond to complaints fairly and consistently; to address adequately the subject matter of complaints; or to ensure complaints are resolved at the earliest possible opportunity;
  
• unfair closure of accounts, or threats to do so; and
  
• false or misleading statements made to complainants.

FAQs

 

1. What is a waiver?

 

A 'waiver' from a rule means a firm does not have to comply with the requirement being waived.

2. What is being waived?

 

In the main, we are waiving our rules that specify time limits for dealing with any complaint about the level, fairness or lawfulness of unauthorised overdraft charges. This means firms will not have to deal with these complaints within the normal time periods required by our rules.

A firm will still have to record the complaint and acknowledge it within 5 days of receipt, but the normal time limit for handling complaints will not apply. Time will be treated as not running in relation to complaints on charges for the duration of the waiver.

Normal time periods:

• within 4 weeks of receiving the complaint, the firm must issue a written response or a holding reply; and
  
• within 8 weeks of receiving the complaint, the firm must issue a written response or reply informing the complainant of the reason for delay, expected date of final response and right to go to FOS.

The waiver is initially being granted for one year, or until the resolution of the test case. We will review it after two months to ensure that there is a stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland; the FOS is not proceeding with cases about unauthorised overdraft charges until resolution of the test case; that firms granted the waiver are complying with the conditions; and, more generally, the continuation of the waiver remains appropriate.

3. Why has the FSA granted a waiver?

 

We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to.

4. What does it mean for consumers and banks and building societies?

 

Consumers:

 

• Consumers with complaints outstanding (currently with a bank/building society)
  The complaint will remain with the bank/building society; normal time processing rules will not apply. Complaints will be dealt with as quickly as possible once the test case is concluded.
  
• Consumers who have just been given an offer from the bank/building society
  Consumers will have two months to decide whether to accept the bank or building society's offer or to wait for the outcome of the test case. If consumers choose to accept the offer, it is unlikely that they will be able to complain again later regardless of the outcome of the test case. If consumers choose to wait for the outcome of the test case, they will not be able to take up the firm's original offer and the firm will only deal with the complaint once the test case is concluded.
  
• Consumers who may wish to complain from today
  Consumers can still complain now or they can wait until the test case is complete - they will not be disadvantaged. The complaint will be recorded and stored by the firm and will be dealt with as quickly as possible once the test case is concluded.

We will still require any new complaints to be acknowledged within 5 days.

• Consumers for whom Scotland is the most likely jurisdiction
  Consumers may choose to take their complaint to the FOS or the courts in Scotland. The right to refer the complaint to the FOS will not be affected. However, if the customer wants to bring a claim to the courts in Scotland, the timing of when the claim is raised may be important. They are advised to seek independent advice on filing a claim now to protect their rights (although a court fee will be payable).
  
• Consumers who have already had a settlement and think they may want it reviewed
  A full and final settlement stands. In some exceptional circumstances the complaint can be reviewed, for example, if there is evidence of coercion or bullying.

Consumers can still complain about new charges incurred.

• Consumers who have received a final response from the bank/building society which does not include an offer
  Consumers still have the option of complaining to FOS. However, the banks and building societies have also requested that the FOS does not consider any complaints about unauthorised overdraft charges until resolution of the test case.
  
• Consumers who are in very difficult financial circumstances - 'hardship cases'
  Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.

This is an extract from FSA waiver - you can get the full transcript from the Internet.

might help

Jan:)

[elseg]

Thank you

 

I have just recieved notification that there will be a hearing about the stay on my case, on 12th September.

 

Is there anything in particular that i should take to help my case, I am hoping that the financial hardship side would be helpful, especially in regards that I am currently recieving Income Support and Carer's allowance, and have a child who recieved DLA at the highest rate, as she has cystic fibrosis. I cannot get a normal job, as due to my daughters illness, and the fact that I will probably take alot of time off due to hospital visits, etc, I have unofficailly been told that I am 'unemployable' (despite having 2 Bsc s and years of experience), so I was relying on the money to help me into self-employment, as seems the only way to get off the benefit system (which I really want to do)

would any of that be of relevence??

 

What else have others taken - I remember someone saying about the bank's non-complience, ie not sending statements, sending standard letters, not submitting court bundles, etc??

 

Any advice would be gratefully recieved xx

E xx

[jansus]

I have a hearing date about the n244 i filled in

 

see post 3 on this thread

 

Michael Browne is recommending completing one of these i think

 

If you go to LITIGATION section in red you can get a list of all the cases that have been settled out of court just on this website -

 

Also keep reading the cases where the stays have been lifted

 

I am not sure what else will help - but I think you will have to rely on the document you sent in - prove that you are a special case and take any evidence that the banks were deliberately delaying and had no intention of defending.

 

On the internet is the FSA statement about the agreement - that might help.

 

Jan:)

[jansus]

juicyd v AIB - STAY REFUSED - **WON**

 

 

Read this thread as well if you have not already

 

Jan

[jansus]

suffer hardship if no

 

 

reference your pm - I dont know whether you have read this thread - but there is reference to lloyds on there as well.

 

The main thing I have read is that you must personalise your appeal in that its seems to be recommended to bring to the judges attention your specific situation as in my post above you can see that hardship cases are supposed to be filtered through.

 

I have no experience of LLoyds but A&L seemed to make it a case of who blinks first before the hearing then they backed down.

 

I am sure evrybody is nervous about going to court - but most judges will understand you are a litigant in person and will try and be helpful.

 

As I said as I have no experience of LLoyds I dont know if my method of ring them two days before the case will work for you.

 

I will keep reading and if I see anything else I will let you know

 

Really hope you are successful

 

Best of luck

 

Jan

[jansus]

Other questions

 

 

which court are you in?

 

Was there an AQ with your case ?

 

And also can you show that Lloyds have used deliberate delaying tactics - in other words has it taken months to get this far?

 

In respect of the bundle - I assume you sent yours in?

 

Unfortunately the defendant can rely on their original defence - so it may not help you that they did not send their bundle in.

 

Jan

[jansus]

Hardship cases, please read this article, comment by FOS***

[elseg]

Other questions

 

 

which court are you in?

 

I am in Hastings Court, on friday 7th (not 12th as prev thought

 

Was there an AQ with your case ?

 

No, it was allocated immediately to the small claims, with a request to provide all evidence 2 weeks prior to hearing (which was for directions, but actually gave directions to hand in bundle??)

 

And also can you show that Lloyds have used deliberate delaying tactics - in other words has it taken months to get this far?

 

They did not supply all my statements - even to this day there are a few missing

 

In respect of the bundle - I assume you sent yours in?

 

Yes, and I have electronic proof of signing that they recieved it

 

Unfortunately the defendant can rely on their original defence - so it may not help you that they did not send their bundle in.

 

Their original defence was rubbish!

 

The above link doesnt seem to be working either, sorry

 

E xx

[jansus]

Hi

 

sorry I coud not get the link to work either.

 

Have you been reading whether Lloyds are appearing to defend stays ?

 

I hope you get on ok tomorrow - I would concentrate more on your personal situation above the standard defence document - and how you have been treated by the bank -I am sorry if I can not help much but I did not get to your stage - I just wish you all the luck in the world

 

Urgent Info Needed To Confirm A Bank Leak

 

 

Jan

[jansus]

*** Hardship cases, please read this article, comment by FOS***

 

it is the halifax section - last post 29th August

 

jan

[jansus]

HDR - v - HSBC

 

this may be worth reading post OFT

[jansus]

Hello

 

How did you get on?

 

Jan

[elseg]

Not too great Im afraid. think the judge had already decided that he wasnt going to lift it, and tried to make out that he was doing me a favour as if it had gone to court, poor little me mightn't be up to the court costs, as if I lost they would be huge (at least a day in court @ £187 ph etc etc) and if I won then the banks would appeal. mainly he said that they had no court date free til early next year anyway, so would be no better off than waiting for te OFT case, with none of the risk.. - I tried to argue the point that none had gone to court, and that the FSA said that hardship cases should go ahead, but no go.....

I am irritated with myself that I didnt make the point that I must have been prepared for the court costs upon embarking upon the case in the first place, as there was no idea of a OFT case back in March when I filed, but in all honesty apart from beating myself up that they had bamboozled me and made me look like an idiot, I dont think it would have made a difference to the outcome. I found the whole process quite patronising and humiliating to be honest. The lloyds barrister was a creep with bad breath. he had googled me, and found out stuff about me, which he dropped in outside, I think to try to unnerve me, and I had come straight from hospital where my daughter was, so didnt have a moment to get my head together before he approached me and tried to pull my arguments to pieces, prior to going in.

at least the judge refused his costs

 

E xx

[jansus]

Oh I am really sorry - I think sometimes as you say if the judge has made his mind up you are just banging your head against a brick wall - Why would you have been liable for costs - was it outside small claims court?

 

Still all is not lost - the case is stayed but not over - I really admire you for actually getting into the court - you did your best - dont take it personally as lots of others are in the same position as you - you have had the guts to go as far as you did so I hope things will work out for you in the end.

 

Jan

[jansus]

I know the FOS have put a stop on claims as well but do you think it would be worth a letter sending the FSA agreement with the banks - stating that you felt you were a genuine hardship case and in the terms of the agreement you should have been filtered through and treated as an individual case?

 

Just a thought.

 

The only other thing is that seeing the POC for the case next year it may be the banks turn to squirm yet?

OFT Test Case POC's

 

 

 

Jan

[fzrkitten]

Hi Elseg,

 

I just saw your post on malaga's thread, sorry you still got stayed, the judge said the same to you as he did to me on the hardship case, so perhaps a warning to others not to try that one after all!

 

It does seem that they have no intention of lifting stays or going ahead, however hadyanth has had success in principle today, so good news there.

 

BW,

 

Fzrkitten.

[elseg]

I know that it is possible to add any charges up to a court date, but does this also mean that any case which has been stayed can apply for extra charges during the intermittant period? It would seem unfair if not, as had they paid out I would not be facing these extra charges??

 

also do we need to reapply to the court following the OFT case

[Castlebest]

Hiya elseg, any charges that have been applied to your account since you submitted your claim will not be included in any court hearing because the court will look at your submission alone.

 

The best thing to do is to start another claim for the new charges you have received, by doing this the court fees are recoverable with the claim. you could alter your existing claim with an N244 form to include the new charges but the court cost is not recoverable.

 

One thing I would say, it is still doubtful if anyones claim will actually be settled in front of a judge, you will eventually negotiate a settlement with the bank's solicitors. I see no reason why you shouldn't ask them for any new charges to be added to the settlement figure especialy as the stays were requested by them.

 

The court will notify you of the options when its time to review your stay.

 

pete