Help Required

[bigdog1878]

Hi

I'm currently in the process of going to Hamilton Sheriff court to reclaim approx £720 plus interest from Lloyds TSB through the Small Claims Court. The court date is 21/12/06.

When I phoned today to find out if they had responded to my action I was told that the bank is going to DEFEND.

Can you give me any clues about what happens next? I'm obviously a bit worried that I could be facing a team of legal eagles and the outcome of my case will set a precedent for the future.

Any type of advice would be appreciated.
Thanks
Alan

[msneddon]

Hi
My claim was at Hamilton against Abbey. It was pretty painless. A stuttering lawer turned up, said they were defending on the basis that their charges were a true estimate of their losses. The judge as much as told them to get their act together and come to a settlement out of court. They made me hang on till the hearing day and sent a lawer along to say a letter was in the post with a 100% settlement offer with no conditions attached. the judge was not pleased that they had not sent the letter to me earlier and continued the case untill 7th Dec to ensure I recieved payment. Abbey paid up almost immidiately. I am currently in the process of claiming the rest of the money they owe me and have informed them I will go to court once again if need be.
Dont worry about court the cout officials will explain everything to you and you will not feel like a fish out of water. Hopefully the bank will pay up before your official hearing date

[matthews mum]

Hi there

I'm a qualified solicitor (not practising just now as I work in another field) and I have to say, I HATED being in court before party litigants - the sheriff was always dead nice to them and horrible to me (even when I was a trainee and knew as much as the party litigant ) don't worry, it'll be fine. At the end of the day, no disrespect intended, but if the firm are "legal eagles" then it just IS NOT going to be worth their lawyer getting out of his/her bed to come and defend your paltry wee case - I bet they'll just pay up - they're just hoping you'll go away. Hang in there.

ETA - any lawyer will usually lodge a NID/return form just to protect their clients' interests - doesn't necessarily mean that the claim won't settle. Just making sure they don't get sued themselves

[bigdog1878]

Thanks very much. I really appreciate the advice.

Alan

[Giveitback]

just gather all your evidence and have everything ready. PPPPPP!

[o0oliambeeo0o]

Hi Bigdog, im currently in litigation with LTSB, below is a copy of the defence they sent to me and also a few others on this site have recieved the exact same defence, word for word.

Hope it helps:

1.The Defender Lloyds TSB Scotland plc (“the bank”) is a bank and whose registered office is Henry Duncan House, 120 George Street, Edinburgh, EH2 4LH. It is admitted that the Pursuer has been customer of the Bank at all material times.


2. By opening an account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with details of the Bank’s charges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include, but are not limited to, providing:

Cheques
Bank statements
The facility to make payments by direct debit and standing order
Debit cards
ATM’s (cash machines)


3. By maintaining the account in credit, or within any limit agreed with the Bank, the customer may avoid most if not all charges. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank’s own funds. If the bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract. On page 1 of the leaflet, the Bank explains that “there are normally no charges for everyday banking at Lloyds TSB when your account is in credit.

When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement or where you use special service, such as copy statements, we will make a charge. This guide explains how these charges work, and when they will apply.

If you want to use a service that we haven’t listed, we’ll tell you the cost of that service before you give us the go ahead”.


4. There is no breach of contract: the charge therefore cannot be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank’s loss.


5. The customer is given advance warning of charges being imposed; Statements show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following month’s statement. Customers are warned by letter when they go overdrawn or over their agreed limit with the Bank. If the customer fails to remedy the position, and payments such as standing orders and direct debits are refused then again the customer is warned by letter.


6. The charges are fair and reasonable, and it is denied that they are unlawful.


7. The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charges are terms which relate to the price payable by the customer for a service provided by the bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999, are not subject to the assessment of fairness.


8. the premises:

8.1 the charges are for banking services, and are not damages or a penalty;

8.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;

8.3 it is denied that the charges are unlawful or contravene any statute or regulation.


9. The Claimant’s claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the Bank.



o0oLiamBeeo0o

[o0oliambeeo0o]

Below is my response to LTSB:

1. The Pursuer does not dispute this point.


2. The Pursuer does not dispute this point


3. The Pursuer does not dispute this point.


4. The Pursuer disputes this part of the defence. At no point in the Unfair Terms in Consumer Contracts Regulations 1999 is there any mention of breach of contract, therefore this part of the defence is both bogus and gratuitous.


5. The Pursuer does not dispute this point.


6. The pursuer maintains that these charges are neither fair nor reasonable and as such are unlawful under the terms of the Unfair Terms in Consumer Contracts Regulations 1999.


7. The Pursuer disputes this part of the defence. Schedule 2 of the Unfair Terms in Consumer Contracts Regulations 1999 sets out an ‘indicative and non-exhaustive list of terms which may be regarded as unfair’.

Part (e) of Schedule 2 states that [terms which have the object or effect of] “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” [may be regarded as being unfair.]


8-


8.1 The Pursuer disputes this part of the defence, and maintains that the charges are indeed a penalty, for the reasons detailed at (7) above.

8.2 The Pursuer disputes this part of the defence, for the reasons outlined at (6) above.

8.3 The pursuer disputes this part of the defence, for the reasons outlined at (6) above, and further contends that the charges do indeed contravene regulations, namely the Unfair Terms in Consumer Contracts Regulations 1999.


9. The Pursuer disputes this part of the defence. The Pursuer maintains that the Pursuer is entitled to the sums sued for, namely £YOUR CHARGES in unlawfully taken charges plus interest at 8% P/A from date of service of each individual charge and all costs associated with bringing this action.