Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
Hi evry1, first proper post after the Welcome one, so here goes!
I ended up creating my own prelim letter, which unfortunately was before I began using the site fully.. bugger!
Anyway, hopefully it was OK, as it looks as if the jist of what I am saying follows the site guidelines (with a few extra bits of legalese thrown in... does anyone think that this will help or hinder?):
As requested by yourself during our conversation, the following is my Formal Request for a refund of the following charges, which I ask that you pass to the relevant Department as soon as possible (please be aware that the entire communication that follows is directed at said Department):
Please note that the following constitutes a Formal Demand prior to possible Legal Action for the refund of the following illegal Penalty Charges:
31st August 2005 - £28
30th September 2005 - £28
31st July 06 - £28
31st August 2006 - £28
8th September 2006 - £60
Total: £172
I have also recently received notification of a further illegal Penalty Charge of £28 due to be placed against the Account on 29th September; I shall expect this either to not be applied in the first instance, or else to be refunded immediately without any form of penalty should such not be possible.
As concerns the basis for this refund, as I am sure you are aware from recent publicity, it is almost universally accepted outside of the Banking Industry (including many organisations, such as Which?, together with the Office of Fair Trading (that incidentally operates under a higher legal authority than companies such as yourselves, being as it is a sub-section of Government) that such charges are Penalty Charges, and as such, unenforceable under several instances of Case Law; the most important of these was the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited (1915), whereby Lord Dunedin laid down the legal definitions which remain in force today:
" i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable";
ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty. "
Although this case is the most commonly quoted as concerns the established jurisprudence, may I also direct you to the following cases, which also act as corroboration in this instance:
Ford Motor Co. v. Armstrong (1915)
Bridge v. Campbell Discount Co. Ltd. (1962)
Murray v. Leisureplay (2004)
(Lord Dunedin's ruling itself was an evolution of Wilson v. Love (1896))
I am aware of the standard replies from the banks as concerns these charges, neither of which have any legal justification:
1) The banks often maintain that such are 'Services', as a means to attempt to bypass the Law. No Service is provided to the customer whatsoever in this instance; the Bank chooses to issue the Notices merely as a means to generate revenue, and the bank is merely entitled to reclaim back only that owed, plus a legitimate level of interest (i.e. reflecting your actual losses, and not illegally increased when the Account goes overdrawn, as such also constitutes a Penalty Charge);
2) The banks also maintain that such charges allow for Free Banking. Many people's accounts (including my own, which bears a legitimate Service, as opposed to Penalty, Charge of £12) are not free, and until all Accounts are free irrespective of services provided, then the Free Banking argument also has no legal basis, as its application is patchy at best.
As a side-point concerning the 'Referral Charge' in particular, may I also point out that even if the charge was legal, your letter informing me of it stated that only one charge of £30 would be taken; you nevertheless took £60 without warning on 8th September 2006).
Although you currently (as of 2.45pm today) have the Account Balance being stated as £-642.42 (i.e. at first glance, £142.42 over the £500 overdraft) limit, the legally enforceable removal of the illegal Penalty Charges means that the actual Account Balance is £-470.42 (642.42 minus 172), as such, the Account is legally in order, and I shall neither accept nor expect any illegal Penalty Charges to be placed against the Account that attempt to imply otherwise; neither will I accept nor expect any further charges in the future that do not reflect your actual, provable losses; finally, I will not accept any form of punitive action whatsoever being taken in regard to this at any point (such will be taken as condoning the illegal charges, and as such the right to take immediate Legal Action will be reserved and undertaken at any time without further reference to yourselves).
Since January 2005 (given that the Bank is well aware of my joining my late mother's Account, and inheriting it subsequent to her passing, and the severe financial and mental pressures that have ensued as a result of my mother's passing) I have been in dialogue with the Bank over various issues; although the Branch Staff at Hythe, Southampton & Southampton High Street Branches have acted in an exemplary fashion, the same cannot unfortunately be said of the higher echelons of the Bank who (given that my situation is well known and on record) have frequently acted in a manner that is not only unacceptable from a fiduciary standpoint, but can be seen as taking advantage of the situation. Such an attitude is disappointing to the point of verging on the reprehensible, especially given the long and mutually beneficial financial relationship that I have intended (and hopefully still intend) to have with the Bank.
In conclusion, I must regretfully reiterate that these Penalty Charges are therefore, in reality, punishment for going overdrawn, and therefore legally unenforceable; as such, please be aware that I will not tolerate any stalling tactics being applied here as concerns their being refunded and, if forced, will reserve the right to take Legal Action through the Small Claims Court without further reference to the Bank should such a refund not be forthcoming within two weeks of the date of this letter. I truly hope that such proves unnecessary, and that future dealings with the Bank will be fruitful and mutually beneficial as a result.
My main queries, having done this prior to looking at the site (will learn from that one!) are:
1) As I have only had the account in my name since December 2004 (it used to be my mother's), I havn't made a Subject access request (as I have all of the Statements). Should I still make one (i.e. to force disclosure of any 'manual interventions'..yeah right ;-)
2) If I do make a Subject access request, shall I then wait for this to be completed before issuing my lba (which I assume is the next stage after my letter as above?), or just go ahead now (i.e, have I inadvertently messed up the order of doing things...AAAGGHHH!!!
3) (and now for the cheeky one)...hope this hasn't been posted before, but its a fairly unusual query and I couldn't find a reference to it...
The Account itself used to be in my late mother's name... I joined onto the Account in December 2004, and she unfortunately passed on a month later. Does anyone know if the claim can only be made in the name of the current holder of the Account, or can I claim back a full 6 years of charges against the Account prior to my joining the account (i.e. claim them back for the Estate)...?
Thanks in advance ppl, any help / comments would be just gr8... ;-)
1) this manual intervention thing doesnt seem to have been an issue recently, so not so important to send off the dara pro letter if you have the statements.
2) send in your lba asap (14 days are up?)
3) do the charges suddenly become lawful because your mum passed away? I think not. I cant see any reason why you can not reclaim these for the estate.
GE capital (5 accounts) WON link HERE
Lloyds bank account WON second claim starting! link HERE
Budget insurance cough up WON linkHERE
Principles WON link HERE
A&L (Mrs Crusher's account) claim link HERE
Barclays claim link HERE
Hi there, sorry to hear of your loss. If I were you I would stick to the templates, that way you know you are doing to correctly. As time consuming it is, its worth it.
Good Luck
Thnx for that info HSBCrusher... soz, forgot to say that have just received the usual 'we're fair and transparent... OFT are wrong... we are the Law' style standard rebuttal, so even if 14 days not up, I'm guessing am OK to move on to lba...
I hoped that that might be the case... just wasn't sure whether they'd try and say that I could only claim for whilst I was registered as the Account Holder... Methinks will amend then, after all, is same account, same number, and have all mum's statements from when it was hers... ;-)
How might you suggest that I do that then, will I need to resubmit an amended claim reflecting these extra charges prior to my joining the account?
thnx, is appreciated... to top it all off, the swines know that I took over the Account as a Home Carer for a terminally ill parent... and that I have taken a year off work to sort out the Finances...seems not to matter one jot...!
Will use the templates now, only ended up writing my own as didn't remember this site and didn't look at it before sending... woops!
yup, I realised that after I'd sent the letter.. was too late to amend by then unfortunately! have been doing a bit too much litigation for other things this year, so get a little over-riled, occacioanlly wack things out too quickly.. lol
we live and learn, eh? Will make sure refer to 'unenforceable' in subsequent letters... ;-)
GE capital (5 accounts) WON link HERE
Lloyds bank account WON second claim starting! link HERE
Budget insurance cough up WON linkHERE
Principles WON link HERE
A&L (Mrs Crusher's account) claim link HERE
Barclays claim link HERE
Am just about to send off my lba, but due to the fact that my NatWest action isn't happening in isolation, I am feeling more than a bit low... let me explain... (I apologise if this may not be the correct place, but I need to explain in order to make my request seem more sensible).
I didn't do a power of attorney prior to my mum's passing, but was acting with her approval. I took on a negative Estate as sole executor, but without any funding, I had to fight off various off her creditors, some of whom where worse than others at being unscrupulous.
My finances were interlinked with hers, and as such have largely collapsed.
Last year, I also lost my jod due to an unscupulous employer who took advantage of the bereavement; I suffered a fractured collarbone whilst fighting these bar stewards... I have been diagnosed as Clinically Depressed.. my Council is also taking advantage and trying trying to evict me.. and I also have creditors attempting to put in county court Claims before I have a chance to claim against them for charges... and I am not thinking straight as I do not have enough money to live on for food
I fought to get a Psychology degree in order to deal with all of this, but at the end of the day, after fighting for 4 years whilst also working and looking after someone who is terminally ill, I'm beginning to lose the extra willpower that even this has given me. (I don't normally make as many typos as this...all more sign of it..)
The upshot of all of this is that I am reaching burnout and am unsure which way to turn; although i have read the site indetail I would evry much appreciate if somebody could point me in the right direction as to the right link for giving help with the Spreadsheet to be sent with the LBA.
Alsom if anyone could point me to threads that can help with anything else I have mentioned, I would really appreciate it, I'll do my level best to take it form there.
Thanks guys, I really am getting a bit tearful and am on the edge of giving up hope here
Also, please please go and talk to your local citizens advice or CCCS about the problems you are experiencing, these need to be sorted out asap.
Please keep us posted, we are always here (well somebody is!!!)
If you let debt collectors know that a debt is in dispute, this will also buy some time.
GE capital (5 accounts) WON link HERE
Lloyds bank account WON second claim starting! link HERE
Budget insurance cough up WON linkHERE
Principles WON link HERE
A&L (Mrs Crusher's account) claim link HERE
Barclays claim link HERE
I've spent so long being determined to fight these swines alone that I think that pride sometimes gets in the way... almost as if I get so far and accept help I'm somehow failing... ;-) funnily enuff have managed to almost complete the Estate single-handedely, it's the effects it has on my own finances that are dragging on longer..
Have spoken to CCCS before, but will do again, and will take a look at CAB too. Luckily most creditors have backed down, it's the few who havn't who are trying to cause problems... don't think they realise who they're taking on.. ;-)
Thanks again, will take a breather for a few hours and try and work out where on the site to look for the other issues..
Hi Damo... Listen dont give up, you need and I stress need to make an appointment with CAB, my very good friend was in a similar situation a few years ago with creditors demanding cash, no job, no home.
She was on the brink of suicide, but she picked herself up, dusted herself down and made that appointment.
They will help you, and yes when the creditors realise that you are doing something about it, they will back down. Do not dispair there is always someone here to help you through each step.
and believe me nothing is worth this worry, I know how you feel my mum was killed in a car crash 8months ago, and sometimes you really dont want to go on, but sad as it is-life does go on. Make her proud !!!
Will def go to CAB; irony is i have achieved so much over past 18 mnths and tend to get very annoyed with myself at the slightest failure (most creditors have backed down and accepted... am perhaps not doinmg myself justice when pnly a few with relatively small amounts are still moaning) I think if go to CAB and say 'I want to do most of this myself... and have done... but just need you to give advice on the little gaps that need filling...'... think that way, I'm still feeling like I'm doing it, but not being overproud and never accepting help..think we've all been there...
Also, worked out spreadsheet mechanics so lba on the way next few days... ;-)
Soz to hear about ur mum too... as much as anyone can, know where u r coming form...
Also, getting this all sorted great incentive as it means can share the tricks I learn with others here; helping always satisfying, don't u think?
Hey there, you'll be fine, you really will. Get those lba's off asap, see if they reply then get the ball moving. You can get help with the payment if its you are not woreking , not too sure where to be honest but I did read it on the site a few weeks ago, parhaps someone knows. Ok chin up and I will keep a look out for your thread
Sorry for the protracted reply guys... had a family emergency which has put everything on hold till today...
Am just about to send off lba, and have had a look at spreadsheets, but have a couple of problems / queries... can anyone help or suggest where to look please?
1) As I said, I am at the LBA stage... I haven't claimed any interest prior to this (i.e. in my prelim), and am a little confused as to which type of interest (and therefore which spreadsheet) to claim for / with at this LBA stage? I understand that the 8% (statutory?) can't be claimed until I make a Court Claim... but the spreadsheets I have looked at all factor it in.. (am I missing something.. apologies if daft if so, bit stressed..)
2) The versions of the spreadsheets I have been able to access are sometimes missing instructions... any ideas?
3) When I attempt to 'save a copy', the IE prompt doesn't tell me where it is saving it... so I export a copy as an'.xls'; I was wondering if this is the correct format and, if so, if the '#VALUE!!#' which appears throughout is anything to worry about?
Thanks, apologies if this is covered elsewhere but I have read so much am getting a case of wood for trees.. ;-)
1) As I said, I am at the lba stage... I haven't claimed any interest prior to this (i.e. in my prelim), and am a little confused as to which type of interest (and therefore which spreadsheet) to claim for / with at this LBA stage? I understand that the 8% (statutory?) can't be claimed until I make a Court Claim... but the spreadsheets I have looked at all factor it in.. (am I missing something.. apologies if daft if so, bit stressed..)
You can and should be charging contractual interest, if you are a "naughty" boy you get charged a higher rate of interest, you can do the same.
2) The versions of the spreadsheets I have been able to access are sometimes missing instructions... any ideas?
check out the tabs below
3) When I attempt to 'save a copy', the IE prompt doesn't tell me where it is saving it... so I export a copy as an'.xls'; I was wondering if this is the correct format and, if so, if the '#VALUE!!#' which appears throughout is anything to worry about?
Value often pops up because you have not entered / between date numerals, so 02/06/2006 is OK, 02.06.2006 is not.
Thanks, apologies if this is covered elsewhere but I have read so much am getting a case of wood for trees.. ;-)
GE capital (5 accounts) WON link HERE
Lloyds bank account WON second claim starting! link HERE
Budget insurance cough up WON linkHERE
Principles WON link HERE
A&L (Mrs Crusher's account) claim link HERE
Barclays claim link HERE
Damo v NatWest **WON**
) limit, the legally enforceable removal of the illegal Penalty Charges means that the actual Account Balance is £-470.42 (642.42 minus 172), as such, the Account is legally in order, and I shall neither accept nor expect any illegal Penalty Charges to be placed against the Account that attempt to imply otherwise; neither will I accept nor expect any further charges in the future that do not reflect your actual, provable losses; finally, I will not accept any form of punitive action whatsoever being taken in regard to this at any point (such will be taken as condoning the illegal charges, and as such the right to take immediate Legal Action will be reserved and undertaken at any time without further reference to yourselves).
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Originally Posted by Rooster-UK
