mcuth v A&L pII ***WON***

[mcuth]

They haven't closed my account just yet (was due to close on 22nd June), and I have some pending charges, as well as applied ones.

Prelim letter sent today by RM Special Delivery:

Alliance & Leicester PLC
Personal Customer Services Centre
Bridle Road
Bootle
Merseyside
GIR 0AA

Dear Sir/Madam

ACCOUNT NUMBER XXXXXXXXX – X X XXXXXXXX
REQUEST FOR REFUND OF CHARGES

I am writing to ask you to refund the charges which you have levied from my account since 19th May 2006 & remove all pending charges from my account. I now understand that the regime of fees which you have applied to my account in relation to direct debit/standing order refusal, over limit, and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.


I am of the view that your charges represent a penalty and are therefore unrecoverable at Common Law. In the Scottish 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 incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. In
particular, charges were applied after I entered into transactions without sufficient funds in my account and also when I have gone overdrawn without authorisation. The actual loss is the cost of automatically sending me a computer generated letter. I would respectfully submit that is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are
calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

On a separate note, your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). My account falls within the scope of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your 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’.

0n 26 July 2005, the OFT 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'. Because your charges include a large
profit margin, in addition to actual loss, they are unrecoverable as an unfair term in contract. I believe that your charges require me to pay a disproportionately high sum in compensation for incurring transactions which were
ultimately declined by an automated computer system. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary..

Your responsibilities
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now

What I require
I calculate that, as at today’s date, you have taken a nett total of £102.00 – there are currently pending unauthorised overdraft charges & interest of £50.13, and I believe there’ll be further unauthorised overdraft charges due next month (in respect of 20th June – 19th July). I request that you refund the amount of £102.00 in full, and remove any & all pending charges on the account. If you cannot remove the pending charges, then please advise the list of them and I will add them to this claim. I enclose a schedule of the charges which I am claiming with this letter.

Targets to resolve this matter
I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard letters and leaflets.

You have 10 working days, from receipt of this letter (i.e. by Wednesday 5th July 2006), to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or do not respond positively, within this time period, I shall send you a further letter before action allowing a further 10 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that will be no further communication from myself and I shall issue a claim at the expiry of the second deadline.

I look forward to hearing from you by return.

Yours faithfully,

Cheers

Michael

[caro]

Well they will just love you Michael Bet they will wish they closed your account sooner.

Now that is just plain greedy when the rest of us are still waiting to get our first lot of bank charges back! (only kidding - lol)

I won't bother with the good luck cos you just know you are going to win anyway don't you. I'll put £1000 on you to win and be back in the A&L winners enclosure. (If I bet more I could clear my debts, and give up work, and get a new car )

[mcuth]

LOL Caro

I was even nice and wrote last week offering them the opportunity to resolve it before formal letters started - as they didn't even have the basic courtesy to reply, I thought "sod them"

If someone's offering odds, let me know - wouldn't mind putting a large bet on too

Cheers

Michael

[Stuart Shields]

Nice one Michael - isnt it nice to be giving A&L a taste of their own medicine

stuart

[saddler10]

Hi Michael, have had my notification that account will be closed at end of July but will be starting my own 'part 2 thread' soon as they have charged me a further £109.00!

Paul

[mcuth]

Stuart - oh yes it is mate

Paul - nice one! I wonder what threat they'll use to those of us with "closed" accounts that aren't closed yet?

BTW, Royal Mail failed to deliver the letter yesterday as "guaranteed" (the only one out of 7 SD letters to not make it on time) - give them their due though, rang them today and they're sending a refund cheque out immediately.

Cheers

Michael

[mcuth]

On checking my account online today, I see that A&L have deducted the pending unauthorised overdraft charges & interest (not due til 6th July), and also an unauthorised overdraft charge for 20-30th Jun.

I'm pretty sure this means that they're closing my account ( a week after they said they would), but it also means that my claim can now have an additional £75.17 added and be firmed up at £177.17

Cheers

Michael

[Jayne&MichaelT]

Hi Michael

I am new to this site and after reading your victory against A & L am definitely going to follow you route. I have been a long standing customer of A & L and have massive charges on my account, which accumulated three years ago when I started my own business and cash flow was difficult (this is not a business account I hasten to add). I have just sent off the data protection form along with my £10.00. I hope to be as successful as you.

Jayne T

[mcuth]

I just checked my account online today - the early deduction of the unauthorised overdraft charges has sent me....unauthorised overdrawn!

Not only that, but one of my Data Protection Act cheques has come in for payment today....hmmm, I'm unauthorised overdrawn due to their early deduction of unlawful charges (including a part month charge which implies they're closing the account) - if they bounce the cheque, I wonder if they'll charge me again.

They were advised that there were cheques outstanding on the account over a week ago, along with the values, and there was enough money to cover them in the account before they deducted the pending charges early. They also received my prelim letter on Friday which requested cancellation of pending charges....depending on the action they take with this cheque, I think it could start getting interesting

Oh, thanks for the comments Jayne - I hope you have great success against this great mindless entity too

Cheers

Michael

[mcuth]

Bang on form, A&L bounced that cheque yesterday - adding another £34 to the claim.

I think I may launch a complaint against them for this one too - given that a) they were informed well in advance that the cheque was one of 2 outstanding, b) they also had advance notice that I wanted the pending charges cancelled & the rest back, c) there was enough to pay the cheque in the account until....d) the charges that took me overdrawn were debited 5 days early (and looking at my last statement, the due date of 6th July is clearly marked )

Cheers

Michael

[mcuth]

Curious - logged into Internet Banking this morning and saw that they've refunded 3 x failed cheque charges & 2 x unauthorised overdraft charges. This now puts the account back in credit. There's enough to cover the final 2 cheques outstanding, so I'm hoping that they'll pay them.

However, the refund isn't for the whole lot - there's still 1 x failed cheque charge & 1 x unauthorised overdraft charge and the unauthorised overdraft interest to refund - total of £59.17 - so I need to amend my docs again....

I wonder what else they can play at before I send the LBA in?

Cheers

Michael

[mcuth]

And overnight another unauthorised overdraft charge goes back on - we're down to £34.17 now....

Cheers

Michael

[caro]

Looks like they might be trying to get you off their back Michael.

[mcuth]

Originally Posted by caro

Looks like they might be trying to get you off their back Michael.

Really? Thought had never crossed my mind

Cheers

Michael

[mcuth]

Hmmm, now I see that the online banking is showing that they've refunded the full balance by cheque. What a set of &^%*@#$ - they've known since 20th June that there are cheques outstanding on the account and this was the fax I sent them yesterday:

By fax to 01