Claiming on a Business account? Lets join forces?

[sytra]

Please can someone look at this letter i intend to send to the court and tell me if it sounds ok.

Started a claim against HSBC they acknowledged and had until 26th Feb to file a defence, we sent a judgment by default as we heard nothing from them on the last thing on the 26th.

Then this morning got a letter from the court saying claim is stayed, the judges words "i am not prepared to assume that the outcome of the action presently before the higher court will not bear upon or offer guidance on the issues to be joined in this case. The action is accordingly stayed"

I intend to take this letter to the court first thing monday, in the hopes that the judge will lift the stay without having to pay, i borrowed the letter above.


I write with reference to your letter dated 27th Feb 2008 in which you state the case I have brought against HSBC is being stayed.

I would respectfully bring your attention to the fact that as this is a small business claim the current OFT test case has no bearing on this case, I am not claiming as per UTCCR which is the reason behind the OFT’s case, this is clearly stated in my particulars of claim.

I would also like to draw your attention to the following statement issued by the FSA, in particular the paragraph on page 2 which is highlighted in red:

FSA publishes review of 'waiver' on the handling of complaints in relation to unauthorised overdraft charges


FSA/PN/119/2007
21 November 2007
The Financial Services Authority (FSA) has completed its review of the 'waiver' of its complaints handling rules in the context of unauthorised overdraft charges. The waiver removes the obligation to deal with unauthorised overdraft charges complaints in the time specified under FSA rules. The FSA has concluded that the waiver is operating effectively and can remain in place.
The waiver was granted on 27 July 2007 to support the test case on unauthorised overdraft charges brought in the High Court by the Office of Fair Trading (OFT). The purpose of the test case is to bring certainty on whether these charges are fair and lawful. The waiver requires complaints to be put on hold until certainty is established and complaints about these charges can be dealt with consistently and fairly. The FSA pledged to review the waiver after two months.
Following detailed examinations of firms' compliance with the conditions of the waiver and extensive consultations with consumer groups and other stakeholders, the FSA has established that the waiver is meeting its four key requirements:
· An effective stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland is in place;
· The Financial Ombudsman Service (FOS) is likewise staying cases about unauthorised overdraft charges;
· Firms granted the waiver are complying with its conditions, including the need for clear communications with customers and appropriate handling of financial difficulty cases; and
· The continuation of the waiver remains appropriate to assist the test case.
Clive Briault, FSA Managing Director, Retail Markets, said:
"The test case between the OFT and the firms is a crucial step in establishing certainty about the legality and fairness of unauthorised overdraft charges. When this certainty has been established complaints about unauthorised overdraft charges can be dealt with consistently and fairly.
"The waiver we granted in July allowed firms to put complaints about unauthorised overdraft charges on hold until these complaints could be dealt with consistently and fairly. But it was important to review the operation of this waiver to ensure that it was working as intended. Our thorough review shows that it is appropriate for the waiver to remain in place.”
Particular concerns had been raised during the review period about the position under the waiver of complainants who may be in financial difficulty. The FSA is satisfied that the relevant part of the waiver is being complied with. However, in view of the importance of this issue, the FSA will carry out further work, in conjunction with the Banking Code Standards Board (BCSB), to check that firms continue to provide appropriate treatment of consumers in genuine financial difficulty.
The waiver review confirms that it remains appropriate for the waiver to continue to apply to consumers in Scotland and Northern Ireland.
The review has also clarified the status of small business accounts, which are not covered by the waiver. The FSA has agreed with the firms arrangements to ensure small business customers are not disadvantaged.
In the course of the review the FSA found that a number of firms had changed their terms and conditions in relation to unauthorised overdraft charges. In the waiver, each firm agreed 'it will not make materially adverse changes in the level of its unauthorised overdraft charges (or in ways that it applies such charges to its customers' accounts) which could amount to customer abuse'. The FSA will be closely monitoring how any change made by a firm will affect customers in practice and whether this amounts to a breach of the waiver.
The test case is expected to start in January 2008.

As you can see in the eyes of the FSA and myself this case should not have been stayed, I would also like to point out that as HSBC (DG Solicitors) are well aware of the fact that this case has no relation whatsoever to the current OFT case.

I respectfully request that you sincerely look again at this case.

Yours Faithfully

[TheyrCriminals]

hi hsbcfiddled,

Thanks for you reply and thanks for defining the term 'they folded' - but no need it's one of my most favourite terms to hear especially when discussing banks!

That's a great result you had there and a real tribute to the strength of your letter - welldone. However my stay lift hearing is the 6th March. I just wish I had seen your letter sooner!!Grrr! Do you think it is too late now to type up anything along the lines that you did in that letter?

Thanks.

TheyrCriminals

[hsbcfiddled]

Originally Posted by TheyrCriminals

hi hsbcfiddled,

Thanks for you reply and thanks for defining the term 'they folded' - but no need it's one of my most favourite terms to hear especially when discussing banks!

That's a great result you had there and a real tribute to the strength of your letter - welldone. However my stay lift hearing is the 6th March. I just wish I had seen your letter sooner!!Grrr! Do you think it is too late now to type up anything along the lines that you did in that letter?

Thanks.

TheyrCriminals

I think I would be inclined to get the letter from the FSA down to the Court ASAP and let them reasearch the website themselves before your hearing. I would also email DG the letter aswell- although they have seen it before when i sent it them.

fiddled

[TheyrCriminals]

Hello again hsbcfiddled,

Understand. But not quite sure what letter from the FSA you mean, do you mean the FSA Waiver Review Report?

TheyrCriminals

[JOSH_IOU]

The reason behind the FSA waiver is unauthorsied overdraft fees on current accounts.

FSA publishes review of 'waiver' on the handling of complaints in relation to unauthorised overdraft charges

[hsbcfiddled]

Originally Posted by TheyrCriminals

Hello again hsbcfiddled,

Understand. But not quite sure what letter from the FSA you mean, do you mean the FSA Waiver Review Report?

TheyrCriminals

sorry .. yes the waiver..... which clearly states that small business claims are not affected by the stay.

[Daisy16178]

I'm in the process of changing business banks and have every intention of claiming back business fees that I am able to. I am aware that the business account is different to the current account procedure, but where is the full information? I've looked on several websites and cannot find readily available spreadsheet information and template letters. I seem to be going around in circles. So far have been looking for nearly 2 hours and still found nothing. Can anybody help me?

[lancasterchelsea]

GOOD NEWS !!!!!! LLoyds business claim(95 to 9
I have a hearing .... application to have stay lifted on 28th May
although it is 3 months away, I hope Lloyds/ martin O Johnson will try to settle before then
I assume I would have to pay this £300 fee before the hearing ???????

this encourages me to apply for HSBC stay lifted

[Goldlady]

Daisy this is the letter I sent NatWest, which I got from somewhere. It worked anyway.....




National Westminster Bank plc
Customer Relations,
Freepost NAT12685,
Borehamwood,
Hertfordshire.
WD6 1BR



Request for repayment of charges

Dear Sir/Madam,

ACCOUNT NUMBER:
SORT CODE:

Our request
We are writing to ask you to refund to us the charges which you have levied from our account over the last three years.

We now understand that the regime of fees which you have been applying to our account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law. If you say that they are not, then will you please demonstrate this by letting us have a full breakdown of the costs to which you have been put by as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

Additionally, 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
We would draw your attention to the terms of the contract which you agreed to at the time that we opened our account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise.

We consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived us into agreeing to pay them.
Your concealment of the true nature of your charges has prevented us from asserting our right until now.

What we require
We calculate that you have taken £xxxx plus £xxxx which you have charged us in overdraft interest for the sum which you have taken. Total £xxxx We enclose a schedule of the charges which we are claiming with this letter.

Our targets to resolve this matter
We hope that you will enter into a sincere dialogue with us about this matter and we are writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

We will give you 14 days to reply to us accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment.

If you dispute that we are entitled to a refund of these charges, we request that you forward within the above mentioned time scale, a copy of the Terms and Conditions that were in force at the time our account was opened, and any subsequent amendments to those Terms and Conditions. These are requested under CPR Pre-Action Protocol 4.6(c), and failure to provide them will be brought to the attention of the court, should it be necessary to commence a county court action.

If you do not respond, or you do not respond positively, within this time period, we will send you a letter before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that, there will be no further communication from us and we will issue a claim at the expiry of the second deadline.


Yours faithfully,



Hope this helps

Goldlady

[TheyrCriminals]

Hi Guys,

I thought I would let you all know I had a hearing for a stay application yesterday, wanted the stay lifted on a Lloyds TSB business account. This is how it went.

Judge walks in, robed up to the nines. I stand and we both bow. He then sits down, it appears he wishes me to remain standing. His first words are:

'I am going to deal with this application in precisely the same manner in which I have dealt with all the other applications for stays to be lifted on business accounts. Therefore I believe the stay should remain in place as the test case will provide us with answers as regards penalties at common law'.

Oh fantastic news, brilliant, thanks for that!!! His mind was made up long before I even stepped into the courtroom! So next it's down to me to make my case, this is my moment to really persuade the Judge with my argument for the stay to be lifted. Oh hang on a minute I've just realised what's the frikin point he's made his decision the saty remians in place! So anyway I thought I may as well give it a shot. I cited the FSA Waiver Review Report, I stated that the waiver was granted in the first place to progress the test case and that the Waiver Review Report of the 21st November 2007 made it expressly clear that business accounts were not covered by the waiver. Clearly made no difference to him! I even read through the Particulars of Claim of the OFT test case, there is no mention of penalties at common law and even though the test case may provide some guidance on penalties it is by no means guaranteed we will get a definitive legal answer as to charges being classed as penalties at common law. Guess what? He didn't even know that penalties were not in the Poc of the OFT test case! He had to read through it (probably for the first time!) It was only because I brought it to his attention that he realised. He then said 'Oh! I'm sure I read it somehwere that the issue was going to be considered!' Ha ha ha what an absolute joke!

The whole legal avenue is virtually now closed with regards to bank charges, business or personal, until the result of the OFT test case is known. We need a political solution!!!!!!!!!!!!

TheyrCriminals

[JOSH_IOU]

Appeal against the decision of the judge.

The waiver is not for Business accounts and it quite clearly says that.

Josh

[hsbcfiddled]

Originally Posted by TheyrCriminals

Hi Guys,

I thought I would let you all know I had a hearing for a stay application yesterday, wanted the stay lifted on a Lloyds TSB business account. This is how it went.

Judge walks in, robed up to the nines. I stand and we both bow. He then sits down, it appears he wishes me to remain standing. His first words are:

'I am going to deal with this application in precisely the same manner in which I have dealt with all the other applications for stays to be lifted on business accounts. Therefore I believe the stay should remain in place as the test case will provide us with answers as regards penalties at common law'.

Oh fantastic news, brilliant, thanks for that!!! His mind was made up long before I even stepped into the courtroom! So next it's down to me to make my case, this is my moment to really persuade the Judge with my argument for the stay to be lifted. Oh hang on a minute I've just realised what's the frikin point he's made his decision the saty remians in place! So anyway I thought I may as well give it a shot. I cited the FSA Waiver Review Report, I stated that the waiver was granted in the first place to progress the test case and that the Waiver Review Report of the 21st November 2007 made it expressly clear that business accounts were not covered by the waiver. Clearly made no difference to him! I even read through the Particulars of Claim of the OFT test case, there is no mention of penalties at common law and even though the test case may provide some guidance on penalties it is by no means guaranteed we will get a definitive legal answer as to charges being classed as penalties at common law. Guess what? He didn't even know that penalties were not in the Poc of the OFT test case! He had to read through it (probably for the first time!) It was only because I brought it to his attention that he realised. He then said 'Oh! I'm sure I read it somehwere that the issue was going to be considered!' Ha ha ha what an absolute joke!

The whole legal avenue is virtually now closed with regards to bank charges, business or personal, until the result of the OFT test case is known. We need a political solution!!!!!!!!!!!!

TheyrCriminals

Disgusting!

[TheyrCriminals]

Hi Josh,

Do you know the process of appealing a decision of a Circuit Judge (or Designated Civil Judge)? Is it costly? Where do you start?

Hsbcfiddled - well said!

TheyrCriminals

[TheyrCriminals]

Hi Guys,

I would really like to consider my 'appeal options'. However I understand that if I am to appeal I have to act fast, apparently within 14 days of the decision.

If anyone has any guidance or advice, or if anyone has been down this road before I would be very grateful if you could post the experience.

Thank you

TheyrCriminals

[groovycaz]

Ive also looked into the appeal process and you have 21 days, (in my case) bur also if tou have a valid reason you can appeal after that time, Im just abour to send off my own appeal which was heard on the 12 Dec and like you the DJ had her mind made up before I went in, and then with their 3 lawyers they changed the hearing to that of my business claim to that of a limitation hearing for which i was not prepared, but death in family meant I missed the time limit to appeal, but called court and because of circumstances said still appeal, tou have to do a letter of evidence and then your requesting a decision to appeal before you get any further, its a long road, depends on your own decision, my claim was dismissed but the did not follow CPR and we were not on an equql footing, they took me completely by supprise..Gc