Loz vs A&L - direct debit and subsequent charges

[loz]

Hi,
I mentioned my problem in another thread (Direct debit taken from my account without permission) when I first complained to A&L at the end of July, but I thought I would start a new thread here.

A&L allowed a direct debit to be taken after I had attempted to cancel it, and the 3rd party had given me zero notice that they were going to take £60 more than my previous payments had been. This took me over my overdraft limit and set off a chain reaction of charges which is still rolling and has now cost me over £700 while my complaint remains unresolved. I have complained strongly about the continual application of charges, paticularly after I have registered a complaint.

The only responses I have had from A&L have been letters after four and eight weeks, apologising for taking so long and not much else. The letter I got at the weekend advises me that "if you are not happy to wait for our conclusion, you may wish to refer the matter to the Financial Ombudsman". I wonder whether I should, what my best course of action is..? I want this resolved ASAP and the nine weeks it has so far taken is not acceptable IMHO.

Anyone any thoughts what I should do?

Cheers,
Loz

[jansus]

The FOS route takes time as well but the most important thing to point out if you go via this route is that the main complaint is about the DD going out without permission and the consequences of this action not just the bank charges per se - as all FOS investigations for the bank charges alone are on stay as well as through the courts .

jan

[loz]

Thanks Jansus, I've made sure to focus on the DD being the root cause of the whole thing - even have a spreadsheet which shows what my account would look like if firstly the DD and secondly the charges had not been taken, at no point does it exceed my OD limit

Loz

[jansus]

Good - let us know how you get on - I hope your letter does not get lost in the HUGE backlog they must have by now

Jan

[loz]

Been unable to focus on this and other issues, too busy moving house, having a holiday, arguing with BT...

I wrote A&L last month telling them that I was really cheesed off that they have done nothing in 3 months to address my complaint, and that unless they pulled their finger out I would go to the courts. Their response was to refer to the test case (the first time they have done this) and pretty much refuse to look into it any further. In the meantime my account is over its limit again - strange considering they have taken £900 off me - and this morning I received a default notice from them because of it.

To say I am livid would be an understatement - I was going to file a court claim about the direct debit thing this week anyway but they have doubled my resolve now. I'll also reply to the default notice pointing out that the account has effectively been in dispute since July and that they just can't do that. I'm soooo angry right now, hope nobody irritates me at work

Loz

[loz]

Quick update - A&L are still ignoring me and continuing to apply charges despite my complaint (quel surprise). However they now have until 15th December to respond to the courts, seeing as they won't respond to me.

Fingers crossed...
Loz

[loz]

Have received acknowledgement of service from Wragge & Co, they intend to defend. I am for some reason far more nervous about this claim than my previous ones against HSBC and NatWest. :-S

[zootscoot]

Good Luck loz

Did you get any response about the default notice?

Do you know if they have added a default to your credit record?

[loz]

I have not had anything from A&L since October, save for that default notice and a few more notifications of charges. Just checked my credit record and there is no default there as yet... I am so sick of this, surely it doesn't take this long to look at a complaint

[loz]

They are taking the mick now. Following on from a patronising letter last month headed "Helping you to avoid unnecessary charges" ("we've noticed that your account has incurred a high volume of charges over the last few months" - no sh!t sherlock!), I now have another patronising letter that says "your account is overdrawn by £xxx and is causing concern... please call us within 3 days" and another Default Notice, dated the following day. FFS.

I do not want to phone them, for many reasons. However they have consistently ignored my written complaints, which is why my account is in this position. I want this resolved, which is why I went to MCOL (I think they have until the 28th to file a defence) since they have proven themselves uninterested in addressing complaints. What can I do if they refuse to acknowledge my dispute and continue applying penalties - and hence the default notice - while my case is pending?

Composing an angry letter in my head... and sick with worry
Loz

[jansus]

there are some threads on her about default notices ( put it in as search) which will inform you what the proceedure is that they must adhere to.

Personally I would write one more letter - stating that

1) The account is in dispute and they should not be proceeding with the default notice
2) the original problem was caused by them and this has never been acknowledged
3) you are disappointed with their standard replies and inflexible attitude and in view of the fact that cases in courts are on hold you have no choice but to proceeed to th FOS and will be sending all copies of corresondence within 7 days- pointing out that the original cause of the charges was an administration error.
send a copy to wragges

if you dont get a reply - please call them - try and get a supervisor -and give it one final go - but make sure you write down the whole conversation.

Keep going

Jan

[jansus]

Default Notices : What they are and EXACTLY what they must contain (OFT)

[loz]

Writing now... for starters I have spotted a flaw in their default notices:

"if it is possible for the customer to put the matter right, details of what he is required to do in order to achieve this, and the date before which he is required to do so. This date must be at least seven days after the date of service of the notice" - they ask me to pay £xxx within 6 days of the date of the notice, regardless of allowing for delivery time...

I wonder whether to address my letter to "P Woods" or "S Griffiths" in Customer Services, or perhaps the nameless person in the Credit Control Unit, all of whom have identical signatures...

Muppets.

[loz]

I never posted my POC, submitted to MCOL (yes I know) on 24th Nov:

On 1st May 2007 Alliance + Leicester (A+L) allowed a Direct Debit of £77-66 to be taken from the claimant's account (xxxxxxxxx) which was approx £60 greaterthan previous payments. Notice of this increase was received on the same day the payment was taken, which is a breach of the Direct Debit Guarantee. This payment led directly to the first in a chain of charges for exceeding the claimant's overdraft limit (£450), which would not have happened if the Direct Debit had not been taken. These charges now total £894-00. Evidence of this will be provided by the claimant.
A+L have further failed in their responsibility to address the claimant's complaint, first raised on 30th July 2007.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 1st May to 24th November of £19-66 and also interest at the same rate up to the date of judgment.

I thought that this summed it up as best as possible in the space available.

[loz]

I got A+L's defence yesterday from Wragge. I expected them to deny everything and indeed they have, but I am still worried that I have done this all wrong. Would appreciate anyone's comments (especially some help with the legal jargon):

1. Save insofar as the same consists of admissions and save insofar as it is herein expressly admitted or expressed not to be admitted, the Defendant joins issue with the Claimant's claim. Pardon?
2. This Defence is served and filed without prejudice to the Defendant's contention that the Particulars of Claim disclose no reasonable cause of action and ought to be struck out pursuant to the provisions of the Civil Procedure Rules Part 3.4 and/or that summary judgement ought to be granted against the Claimant pursuant to the Civil Procedure Rules Part 24.2 as the Claimant has no real prospects of succeeding on the claim or issue and there is no other compelling reason why the case or issue ought to be disposed of at trial. I have no grounds for complaint? My ar$e

General
3. It is admitted and averred that the Defendant is a company providing banking services.
4. It is further admitted and averred that the Defendant agreed with the Claimant to provide banking services for the Claimant in accordance with the Defendant's standard terms and conditions.

The Direct Debit
5. The Claimant states that on 1 May 2007, the Defendant allowed a Direct Debit to be taken from his account which was approximately £60 greater than previous payments.
6. However, the Defendant has no control over the amount that is debited from an account or when it is debited by way of Direct Debit payment. The Defendant simply gives permission to the Direct Debit recipient to debit money its customers' accounts (in this case the Claimant). The Defendant cannot therefore be held responsible for the quantum of a Direct Debit payment taken from the Claimant's account. But aren't they responsible for resolving any mistakes/disputes etc under the Direct Debit Guarantee?
7. In any event, the Defendant has a policy whereby if there is a query with a Direct Debit, it offers an Indemnity to the customer. This means that the customer is able to request that the Defendant pays the money taken by the Direct Debit payment back into his/her account, and the Defendant would then claim the money back from the party who debited it. And how exactly do I get A+L to do this, if complaining doesn't work?
8. This Indemnity was open to the Claimant. However, he did not contact the Defendant until 31 July 2007, some two months after the Direct Debit had been taken out of his account, to try and rectify the situation. Just because over two months had elapsed before I became aware of my rights, doesn't allow them to dismiss the complaint, surely?
9. The Claimant claims that the party in question did not notify him of the change in the value of the Direct Debit to be taken from his account until the day it was actually debited. The Defendant is not responsible for the Claimant not being aware that there was a change in the usual Direct Debit amount. The Defendant repeats paragraph 6 above.
10. The Claimant also claims that he cancelled the Direct Debit in question using the online banking facility offered by the Defendant, prior to the Direct Debit being taken from his account. However, the Defendant received no notification that the Direct Debit had been cancelled. Had the Claimant correctly cancelled the Direct Debit using the online facility, this would have taken effect the following day and would have prevented the Direct Debit being taken from his account. The Claimant is therefore put to strict proof that he cancelled the Direct Debit. My point exactly, and I cannot prove what happened, but I think their website is slightly misleading where this facility is concerned.
11. The Defendant has no information regarding the Direct Debit in question. If there was a problem with the Direct Debit, it is for the Claimant to contact the party debiting the money from his account to query it. The Defendant would only be involved should an Indemnity be requested. The Claimant is therefore put to strict proof that the amount debited from his account is incorrect and was not owed to the recipient of the Direct Debit. I never claimed the amount was not owed to the 3rd party, rather that the way they claimed it was incorrect.
12. The Defendant denies being liable for the charges incurred as a result of a potential error by the party who took the Direct Debit. It is for the Claimant to contact that party to claim any charges incurred as a result of an incorrect amount being taken by Direct Debit. Seriously?
13. In any event, the Defendant denies that the Direct Debit can be the cause of the amount of charges claimed by the Claimant. It is the Claimant's responsibility to keep his account within the agreed overdraft limit, regardless of any queries regarding Direct Debits. I have a spreadsheet which will hopefully prove that without that transaction the charges would not have begun/continued...

Charges
14. In accordance with the Defendant's standard bank account terms and conditions agreed to by the Claimant, the Claimant agreed to pay charges as levied by the Defendant for banking services provided by the Defendant in the course of the banking relationship. It is admitted that, in accordance with those terms and conditions, the Defendant has debited the Claimant's account with bank charges as set out below.
15. The Defendant's terms and conditions from time to time, which are incorporated into the agreement between the Claimant and the Defendant, provide specifically for the debiting of these categories of charges as follows:
15.2 PAID ITEM FEE
This is where the customer (the Claimant) presents an item for payment, and the Defendant is prepared to pay the charge, but the payment is in excess of the Claimant's agreed credit limit.
The charge for this is currently set at £25 per item, with a maximum of no more than four paid item charges per day or six paid item charges per month being levied. So kind with their maximums...
15.2 FAILED TRANSACTION FEE
This is where the customer (the Claimant) presents an item for payment that the Defendant was or is not prepared to pay. This is currently charged at £34 per item presented. Are they admitting here that they charge more for doing nothing than they do for making a payment? And why do they not make this charge when I try to use my debit card?
15.3 UNAUTHORISED OVERDRAFT FEE
This is where the customer (the Claimant) goes in excess of the agreed overdraft limit, or where the customer (the Claimant) never had an overdraft limit and went overdrawn.
The charge for this is £25 for the first day and then a further £25 if the customer (the Claimant) remains overdrawn for five or more days during the month.
16. The only charges relevant to this claim are those which have been debited to the Claimant's account within these three charge categories in the last six years from the date of issue of these proceedings.
17. These charges were incurred as follows:
17.1 The paid item fee is a charge incurred where the Claimant presents an item for payment which, if honoured, would give rise to the Claimant's account being overdrawn in excess of any overdraft limit at that point agreed between the parties, and where the Defendant decides nevertheless to make payment in relation to the item.
17.2 The failed transaction fee is a charge incurred where it is necessary to return a cheque or other item unpaid as a result of the Claimant presenting an item for payment which, had it been honoured, would have given rise to the Claimant's account being overdrawn in excess of any agreed limit.
17.3 The unauthorised overdraft fee is a charge incurred where the Claimant's account becomes overdrawn and no overdraft facility has then been agreed in advance by the Claimant; or becomes overdrawn in excess of the overdraft limit at that point then agreed between the parties.

Credit File Repairing They are either entering a "standard" defence, or somebody has actually read my letters, since my POC didn't mention my credit file...
18. It is denied that the Defendant has entered any untrue and/or incorrect and/or misleading information against the Claimant's credit record.
19. It is further denied that the Defendant has entered any untrue and/or incorrect and/or misleading default notices against the Claimant's credit record.
20. Insofar as the Defendant has entered any information which could be described as detrimental and/or any information which could be described as a default notice against the Claimant's credit record, then that information is true and has been added by reason of the overdraft on the Claimant's account and/or is as a consequence of the Claimant's own conduct of the account with the Defendant and where charges have been debited only in accordance with the Defendant's standard terms and conditions agreed to by the Claimant.
21. It is denied (if such is alleged) that the Claimant's defaults occurred as a result of any charges levied by the Defendant. The Defendant levied charges in accordance with the Defendant's standard terms and conditions.
22. It is therefore denied that the Claimant is entitled to any alteration to the credit history, as claimed or at all.
23. If, which is denied, the Claimant is entitled to any alteration of the credit history, it is averred that the Defendant can only forward amended credit history details to the various credit reference agencies. It is for the credit reference agency to alter or amend the credit file and it is not within the power of the Defendant to alter the credit file or direct an alteration of the credit file.
24. It is denied (if such is alleged) that the Defendant defamed the Claimant in the manner alleged or at all, and it is denied that the Claimant is entitled to any declaration in this regard. It is also denied that the County Court has any jurisdiction to hear any allegation of defamation and so any such claim is an abuse of process.

Interest
25. It is denied that the Claimant is entitled to interest as is alleged or at all. If, which is denied, the Claimant is entitled to interest, that interest is to be calculated in accordance with the provisions of section 59 of the County Courts Act 1984 at the rate of 8% per annum.

Overdraft/Set-Off
26. In any event, if at the trial of this action the Claimant holds overdrawn accounts with the Defendant, then even if any money is due to the Claimant by way of refund, then the Defendant is entitled to and claims to set off the sum refunded against the overdraft sum then outstanding on that account(s) and owing by the Claimant to the Defendant.
27. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the loss and damage as pleaded. The Claimant is not entitled to the relief sought, or any relief.

STATEMENT OF TRUTH
The Defendant believes that the facts stated in this Defence are true. I am duly authorised by the Defendant to sign this statement on its behalf.

I think what happened when I tried to cancel the Direct Debit is that I mistakenly clicked the button marked "cancel", rather than the "submit" button. Yes this would be my mistake but I bet I'm not the first person to do this.

I guess I wait for instructions from the court now? I haven't sent them any copies of letters, list of transactions or anything like that yet, do I send them or wait?

Loz