Claiming on a Business account? Lets join forces?

[photoman]

This should answer your questions about how to phrase your claims for Contractual and also how to apply for a raising of the bar on limitations by citing sec 32 of the Limitations act.
Remember also, according to recent postings by Bankfodder, the fact that the Banks continue even NOW to charge these same rates is indicative of continued concealment of the true nature of these charges. ie; they are still being presented as legitamate costs. This means concealment is eveident, current and ongoing. So they have lost all rights under the Limitations act.

A draft example of a POC
To Cover:
1/ Claiming on a Business account
2/ Claiming Contractual interest.
3/ Claiming back further than 6 years.

Particulars of Claim:

1. The Claimant had a bank account xxxxx (branch sort code xx-xx-xx) with the Defendant, between the periods of xx/xx/xx and xx/xx/xx governed by the Defendant’s Banking Terms and Conditions (the contract).
2. The Claimant admits to breaches of the terms of the contract that required the Claimant to stay within any agreed overdraft limit.
3. The Claimant’s breaches of contract have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xx/xx/xx and xx/xx/xx. A list of the charges and interest on the charges is annexed to the Particulars of Claim at pages 4 to 7.
4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendant on said charges. In addition the Claimant claims interest on the full amounts as detailed in paragraphs 15 & 16.
5. In support of his basis of claim the Claimant contends that the charges are:
i. Excessive in that they are not truly reflective of any actual or genuine pre estimated loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses, or pre-estimate of costs in relation to the Claimant’s accounts breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has failed to do so, the Claimant thus contends the Defendant’s charges to be indefensible, unenforceable at law, and unauthorised.
ii. Excessive in that the Defendant is being at minimum fairly and amply compensated otherwise for unauthorised lending by the imposition of unauthorised overdraft interest rates.
iii. Devised and enforced by the Defendant with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit.
iv. Punitive in nature in that they are used in "in terrorem" to discourage the Claimant from presenting items on the account for payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforceable under common and/or statutory law.
Accordingly the Defendant’s default charges are:
a. A penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Defendant and therefore contrary to common law.
b. Unfair and unreasonable under section.4 of the Unfair Contract Terms Act 1977.
c. In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.
6. The Defendant has declined to answer the Claimant’s written requests for information about any manual intervention necessitated by, and/or any actual administrative costs incurred as a result of, the said breaches.
7. The Claimant contends that the Defendant failed to conduct itself in a manner befitting such a position of great trust. The Defendant had a duty of care to safeguard all money entrusted to it by the Claimant, yet it repeatedly took sums that despite several requests has still failed to lawfully justify. This amounts to a failure of the Defendants fundamental duties of trustworthiness, transparency, diligence and care.

8. The Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:
a. Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co. [AC 79];
b. Lordsvale Finance PLC v. Bank o/Zambia [QB 752];
c. Murray v. Leisureplay [EWCA Civ 963 ]
d. Nurdin & Peacock v D B Ramsden [1999] 1 W.L.R. 1249)
e. Lord Elphinstone v. Monkland Iron and Coal (1886)
f. Clydebank Engineering and Shipbuilding co v. Ramos Yzquierdo y Casteneda (1905)[AC6]



9. The claimant draws attention to a report from the Competition Commission entitled "Northern Irish Personal Banking," published on 20/10/2006. The Claimant contends that it is not unreasonable to draw close comparisons between the functions and practices of Northern Irish and mainland UK Banks. This is thus reasonable evidence that the defendant is aware that the income derived from its default charges are; excessive, do not truly reflect the actual costs incurred in dealing with such breaches, and unduly enrich the Defendant.

10. The Claimant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:
a. The OFTs recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.
b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.
c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.
11. The Claimant seeks permission to proceed with the claim under section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimants right of action, before the report of the OFT was published on 5/4/2006. Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where;
b). "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".
The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges. Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.
12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)(c) of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties. The Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.
Section 32(1)(c) of the 1980 Act postpones the commencement of the limitation period where;
c). "the action is for relief from the consequences of a mistake"
The claimant cites inter alia Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter.
13. In respect of paragraphs 11 and 12 section 32 of the Statute of Limitations act (1980) stipulates that:
"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".
14. In regards to paragraphs 11 & 12 the Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:
i. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349
ii. Deutsche Morgan Grenfell V Inland Revenue (2003) EWHC 1779 (ch)
iii. Cave v Robinson Jarvis (House Of Lords) [2002] UKHL 18

15. The Claimant claims compounded contractual interest on the amounts claimed using the Defendants own current published rates and method specified in the said contract, and as applied by the Defendant to monies it is owed. The Claimant’s grounds for seeking a compounded rate of interest are:
i. That there is an explicit or implied term of mutuality and reciprocity within the contract, and equity dictates that sums owed by the Defendant should be subject to interest under the same terms and at the same rates that the Defendant has itself imposed upon the Claimant throughout the term of the contract.
ii. That the defendant has and would also continue to be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest. The Defendant is a large corporation with specialist investment capability, as such the Defendant has had use (and would also continue otherwise to have use) of the sums taken to invest and re-lend at commercial compounded rates. It has unjustly profited and would also continue to greatly do so should the Claimant’s entitlement to interest be limited to statutory rates.
16. Under the terms of the contract money taken without prior permission constitutes "Unauthorised Borrowing" and is subject to specific rates for such. The Defendant is clearly in a privileged position to have had direct means of withdrawing monies from the Claimant’s account. Since it was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply unlawfully high charges and interest thereon to the Claimant, then the charges and resultant interest were taken by the Defendant from the Claimant without prior permission. By the Defendant’s own definition money taken without prior permission is equivalent to "Unauthorised Borrowing", so similarly sums taken by the Defendant from the account in such a manner should be deemed subject to interest at the same rates and same manner imposed by the Defendant. A schedule of the interest calculated in such a manner is annexed to the Particulars of Claim at pages 8 to 11.
17. In the alternative to paragraph 16. Should the Court decide that although taken unlawfully, the Defendant had been given some form of authority from the Claimant to take the charges, then this should be considered as "Authorised Borrowing". The Claimant still maintains, if this is deemed so, that he was acting or failing to act due to the Defendant’s concealment and/or acting under mistake. The accounts Terms and Conditions specify the methods for interest payable on "Authorised Borrowing" upon the account. The Claimant holds that this method applies equally so to Authorised drawings by the Defendant as much as by the Claimant, so claims interest at the same rate and in the same manner imposed by the Defendant upon the Claimant. A schedule of the interest calculated in such manner is annexed to the Particulars of Claim at pages 12 to 15.
18. Accordingly, the Claimant claims:
a). The return of £xxxx.xx taken by the Defendant in charges and interest of £xxx.xx applied on the charges between the period xx/xx/xxxx and xx/xx/xxxx.
b). All court fees and expenses.
c). Compound interest at the Defendant’s currently published Unauthorised Borrowing rate of xx.xx% APR from xx/xx/xxxx to xx/xx/xxxx(date of claim) of £xxxx.xx as annexed to the Particulars of Claim at pages 8 to 11. Also Contractual interest at x.xx% compounded daily from xx/xx/xxxx (date of claim) up to the date of judgement or earlier payment.As the interest is compounding, and the Claimant is unable to predict when the claim will be heard or settled, the Claimant is unable to specify a static daily interest figure. He will provide an updated settlement figure in respect of the interest at any hearing, or if and when the Defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently £xx.xx per day, however as noted herein, this figure is liable to increase over time.
d). In the alternative to 18 (c) and with regards to paragraph 17 compounded interest at the Defendant’s currently published Authorised Borrowing rate of rate of xx.xx% APR from xx/xx/xxxx to xx/xx/xxxx (date of claim) of £xxxx.xx as annexed to the Particulars of Claim at pages 12 to 15. Also Contractual interest at x.xxx % compounded daily from xx/xx/xxxx (date of claim) up to the date of judgement or earlier payment.As the interest is compounding, and the Claimant is unable to predict when the claim will be heard or settled, the Claimant is unable to specify a static daily interest figure. He will provide an updated settlement figure in respect of the interest at any hearing, or if and when the Defendant requests an earlier settlement. An approximate amount, for guidance purposes only, is currently £xx.xx per day, however as noted herein, this figure is liable to increase over time.

I believe that the contents of these particulars of claim are true.

Signed:



PS: It is upto yourself if you wish to also include a sub-paragraph for claiming Statutory in the alternative. Personally, I have not done so , as I think it makes your personal belief and convictions in the justification for claiming Contractual seem weak. However, by not including it, you do run the risk of not getting the Statutory rate should it come before a judge. It is upto yourself, and I do not take any responsability for your own choices based upon my opinions.

[groovycaz]

photoman you are a complete star, hope you dont mind me asking your advice along the way. Decided to write to the Co-Op again today refering them to my previous letters and the time scale that has passed in which i recieved no reply.
Ive decided to include in my letter a schedule of all the charges (again) and of my intentions to issue a claim including CI and see if i recieve a reply, I will give them another 14 days to comply then if nothing i will then file my claim. Ive got loads of notes which are relevent to my claim and copies of leters they sent to me after i requested they stop sending me letters at £15 each to inform me of any defaults claiming that they were unable to, as the letters were computer generated.
I will make sure im clued up on case laws as this is 1 claim i dont want to loose, and your right, it is my money they took unlawfully from me 10 years ago when i was struggling to get my business off the ground and looking back at that time they closed most of the sub banks within our local Co-Op stores and on several occasions when i had uncleared amounts in my account and had written a cheque which had been presented, they allowed it to be re-presented 3 times in 1 day and 2 times the next day knowing my funds would not clear until 2 days later so 5 times £45 in 2 days when they could have returned the cheque refer to drawer. Simply stealing my hard earned money when my cheques did clear it was eaten up with the charges...GC

[c_allen]

Hi all,
i've received an offer this morning from NatWest, offering about1/3 of my claim, so i'm thinking of sending this letter to them, i think i've been a bit strong in certain bit's, what do you think? feel free to pull it to bit's if it needs it.
Dear Mr Higley

Thank you for your letter dated 27 April 2007. I respectfully decline your offer of Full and Final.

I shall be commencing court action on 14 may 2007 for the full amount claimed, should you not offer the full amount claimed before this date.

I would also like to inform you that when settlement is reached, then i would only accept payment in the form of a cheque made payable to *********. You must not credit any monies to any account which I may have with yourselves, this is because, as far as I am aware, both the accounts mentioned above are closed.(should this not be the case, then i ask you to close them, as I have no further need of them, and will not be doing any banking with the NatWest in the future).
I thank you for the leaflet setting out your ''current terms and conditions'', so for the sake of completeness would you please send me a copy of the ''terms and conditions'' that were ''current'' at the date that i opened my account with you, as the current terms and conditions have no relevence to this claim, the only terms and conditions that have any relevence are the ones that were in force at the time of the account being opened.
You also state in your letter that '' it is important to us that our customers have every opportunity to arrange suitable borrowing'', to this I can only say that as a business account holder I found it unbelievable when your bank turned down my attempts to ''arrange suitable borrowing'' when I applied for an overdraft. And that you then levied penalties to my account, forcing me into ''unarranged borrowing'' with impunity, and then forced me to take out a consilodation loan, to pay these penalties.

In your letter you state that ''we do make charges when customers, by their actions, request an increase to, or the creation of an overdraft in excess of their previously agreed limit. By reviewing such requests we provide an additional service. These charges can be avoided entirely by arranging suitable borrowing facilities in advance''. As far as your claim that '' by my actions I requested an or creation of an overdraft'' I would like to ask you why? when I attempted to arrange an overdraft before these penalties were levied, I was not charged for that ''service''? And also you state that ''By reviewing such requests we provide an additional service'' I would like to point out to you that in my LAWFUL DATA SUJBECT ACCESS REQUEST, dated 05 june 2006 (which took you over 8 month to comply with!)I stated '' I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you, and transcipts of any telephone coversations.
If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response''

I see now that you are claiming that such manual intervention has taken place, which, if that is the case, then I am once again, formally requesting any evidence of that manual intervention in relation to my banking business with you, as per my LAWFUL DATA SUJBECT ACCESS REQUEST.
You go on to state that ''Furthermore we believe that these charges are ,fair, reasonable and transparent''. In the interest of this ''transparency'', I will once again give you the opportunity to prove that this ''transparency'' exists, by suppling me with the exact costs of these ''services'' you provide, along with any evidence in support of these figures.
You also state in your letter ''Where claimed, the bank will not consider payments in respect of interest'', I can only say that I am not interested in weather or not the bank will consider this, I will be the one who starts any county court claim in respect of this amount, and if this claim does escalate into court action then it will be for the Judge to decide, but in the interest of fairness, I will clarify my position in regard to interest. I am claiming the interest that was charged to my account, on the loan, that your company forced me to take out to repay unlawfully levied penalty charges. I am also claiming interest at the rate that your company charges me for '' unauthorised borrowing'' currently 29.50% compounded daily. I am claiming this ''contractual rate'' based on the contract between yourselves and me, and based on the principle of mutuality, reciprocity and equity.

I wish to stress that I do not accept your offer as Full and Final settlement.
What I require for this claim to be settled is £3227.08, byway of a cheque made payable to *********. Plus daily interest at £2.60 per day from 30 April 2007, untill the date of settlement. Also removal of all adverse information, if any, from my credit files weather held by yourselves, or an outside company.
I trust this clarifies my position.

[photoman]

c allen
Was the offer sent in response to your prelim or LBA?
Presume you have not actually started court action yet?
Your letter looks fine, (apart from some grammar and spelling, eg Whether not Weather).
Personally, I think you are going into too much unecessary detail if you are proposing sending this as an LBA, and you may find that some of the comments you make may not be as well thought out at this stage than they will be on your actual claim. And you may later regret them. Bearing this in mind I would suggest you simply send the standard site version of the LBA, and consider and compose your actual N1 claim in the meantime.
best regards

[c_allen]

thanx photoman, i was about to get my n1 ready to start, this was in response to my LBA. i'm not really as clued up on the sevice charge angle, as i am on the default angle so i'm trying to head off that arguement, as i'm pretty sure the T&Cs when i opened the account said nothing about charges being for services, and were default fees. thanxs for pulling me about whether & weather, im always getting that wrong, mental block or something.
if you think theres anything in the letter i may regret later, please tell me, and i'll remove it

[groovycaz]

Hi photoman, would you happen to know if,after you obtain judgement in default of the other side not filing their defence on time , and after they filed an acknowledge of service to defend, is there a time limit after obtaining judgement, for them to apply to have the judgement set aside, Im sure I read tha this must be done within 14 days of judgement but i could be wrong

[photoman]

c_allenthanx photoman, i was about to get my n1 ready to start, this was in response to my LBA. i'm not really as clued up on the sevice charge angle, as i am on the default angle so i'm trying to head off that arguement, as i'm pretty sure the T&Cs when i opened the account said nothing about charges being for services, and were default fees. thanxs for pulling me about whether & weather, im always getting that wrong, mental block or something.
if you think theres anything in the letter i may regret later, please tell me, and i'll remove it

C-alen
I would still suggest you send a more simple letter, sending the cheque back, simply stating that it is not acceptable as it is not in full settlement of the claim. State that you are dissapointed by their response, and the fact that they now leave you no alternative other than to pursue the matter through the courts. Then file your N1.
It may also be advisable to mark any such letters as "without prejudice", as this then means it cannot be later used as evidence in court. How this works exactly, and how much of your coresspondance it precludes from trial I suggest you ask a moderator or site helper to advise upon. GaryH seems to be very knowledgable on this area.

groovycazHi photoman, would you happen to know if,after you obtain judgement in default of the other side not filing their defence on time , and after they filed an acknowledge of service to defend, is there a time limit after obtaining judgement, for them to apply to have the judgement set aside, Im sure I read tha this must be done within 14 days of judgement but i could be wrong

Groovycaz
The courts seem to invariably giving the Banks some leeway in time for filing defences. They nearly always apply to have the judgement set aside. I suggest you send a mesage to one of the site helpers or Mods for advice.
Again, GaryH seems to be the person in the know here.

regards

Photoman

[deedee2665]

Hiya everyone im a newbie on here , but have been claiming my bank charges back for a while and this one is a little different because it was my husbands business acc .
We had a business acc with hsbc and it was closed down about 3 years ago now , we asked for and got our statements fairly quickly from hsbc and then added up the charges we can claim back , this came £753 . We sent our first letter to ask for oyr money back and got a reply offering us just £280 of that . Im looking for a letter template i can use to accept this only as partial payment and the lba letter . For some reason i can not find a template for the lba letter could someone please point me in the right direction ?

Many Thanks for any help given

deedee

[c_allen]

http://www.consumeractiongroup.co.uk...lates-library/
all the letters are here. don't forget, don't use the utccr in your letters

[groovycaz]

Had a phone call from BOS this afternoon asking me HOW WOULD YOU LIKE TO RECIEVE YOUR FEFUND OF BANK CHARGES! Eh, just like that SHOCKED OR WHAT. They asked if I wanted the cheque made payable to me or my Business and told me I would recieve the repayment of £1800 by the end of next week. So donation on the way as soon as I recieve it, Thanks for all the help and advice ive recieved, This site is excellent and a special thanks to PHOTOMAN for all the advice and directions he gave me, Sorry PHOTOMAN but im not going away just yet, its the uncooperative next so will be pestering you again.
I won my £1800 back from BOS, they did not want to go to court and settled in full. and HA HA HA

[TUTTSI]

FANTASTIC NEWS CONGRATULATIONS

[andrew1]

Reminds me of the Beatles song " gonna have a revolution, oh oh" or am I being apprehensive?

well done, you must have frightened the .....out of them ! - we lesser mortals have to go to court!!

[tifo]

Originally Posted by groovycaz

Had a phone call from BOS this afternoon asking me HOW WOULD YOU LIKE TO RECIEVE YOUR FEFUND OF BANK CHARGES!

Congrats!

I think most people will find that HBOS are giving out full refunds after the second letter or telephone call.