davethorp vs lloyds TSB ** WON**

[davethorp]

My Lloyds TSB account was defaulted with an overdrawn balance of £312.83 made wholly of charges and interest resulting from these charges.

I have recieved a county court claim pack from them today claiming the balance off me. Obviously as these charges are EDIT (UNLAWFUL) and my overdrawn balance is wholly made up from their charges I intend to defend the claim and counterclaim to get the default removed.

I will be submitting my defence using moneyclaim online and wondered if anyone on here had an idea of the best things to put in my defence

[Steward]

You can use Google to search the web using these links below:-

[davethorp]

I've drafted up the following based on templates here and my own changes to reflect that I am arguing a claim against me rather than claiming against them. Would appreciate opinions before I submit to moneyclaim. Got 28 days to finalise my defence and file that and any counter claim. Any advice/opinions would be appreciated

1. The defendant had an account ("the Account") with the Defendant which was opened on or around January 2004 and the defendant agrees with the claimants statement that this account was closed on 31/01/06 but disagrees with the default notice and balance outstanding for reasons below.

2. During the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the defendant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the defendant.

3. The defendant submits to the court that the allegded outstanding balance of £313.83 is made wholly of these charges and interest and further charges charged as a result of them

4. The Defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. On this basis the defendnat denies any liability to Lloyds TSB regarding this outstanding balance and would ask that the claimant submit proof of this outstanding balance to the court and the defendant in the form of a complete bank history statement of the account in question. In the event of unlawful charges on this statement being greater than the amount claimed by the claimant the defendant requests the court adds this balance to the counterclaim below

6. In addition the defendant counterclaims that as the claimant entered a default notice against the defendant as a result of these unlawful charges that the default notice be removed (correction or ammendment will not be acceptable)

7 The defendant also seeks damages in respect to the distress caused as a result of both the claim and the default notice both of which have been wrongly brought against the defendant. The defendant also seeks any amount that has been unlawfully charged in excess of the £312.83 in question to be paid to him in addition to damages and the removal of the default notice requested on this counterclaim.

[bearo]

I think you will find that if you are issuing through MCOL you will need to lose a few characters here and there, there is a limit on wording on MCOL looks like you have the N1 hardcopy particulars there. here is the link to the MCOL ones... http://www.consumeractiongroup.co.uk...laim-line.html

[davethorp]

As it's a defence/counterclaim I'm allowed up to 8000 characters on moneyclaim which what I have at moment fits in.

I'm probably going to try and get my account data off the data controller and hope it comes within 28 days as my statements will aid my defence. If I don't get them in time though am I best just indicating that I will be submitting further evidence to the court when I recieve it and just indicating that depending on this evidence I may or may not be submitting a counterclaim depending on if the charges are over the balance Lloyds TSB are claiming off me or is there anyway I can ask the court for more time to submit my defence (further than filing AOS that I have already done)

[bearo]

Apologies I didnt read your post correctly!

[davethorp]

I've revised my defence/counterclaim slightly. Now reads as follows:

1. The defendant had an account ("the Account") with the Defendant which was opened
on or around January 2004 and the defendant agrees with the claimants statement that
this account was closed on 31/01/06 but disagrees with the default notice and
balance outstanding for reasons below.

2. During the period in which the Account was operating the claimant debited
numerous charges to the Account in respect of purported breaches of contract on the
part of the defendant and also charged interest on the charges once applied. The
defendant understands that the claimant contends that the charges were debited in
accordance with the terms of the contract between itself and the defendant.

3. The defendant submits to the court that the allegded outstanding balance of
£313.83 is made wholly of these charges and interest and further charges charged as
a result of them. The defendant did make the claimant aware of this fact during a
number of telephone calls from the claimant however it has become clear to the
defendant that the claimant has not taken this fact on board

4. The Defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine
pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the
Claimant in respect of any breaches of contract on the part of the Defendant; and
are not intended to represent or related to any alleged actual loss, but instead
unduly enrich the Claimant which exercises the contractual term in respect of such
charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is
unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts
Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. On this basis the defendnat denies any liability to Lloyds TSB regarding this
outstanding balance. In addition the defendant is gathering evidence of a potential
counterclaim against the claimant in the process of gathering evidence to aid his
defence

6. The defendant counterclaims that as the claimant entered a default
notice against the defendant as a result of these unlawful charges that the default
notice be removed (correction or ammendment will not be acceptable)

7 The defendant also seeks damages in respect to the distress caused as a result of
both the claim and the default notice both of which have been wrongly brought
against the defendant. The defendant also seeks any amount that has been unlawfully
charged in excess of the £312.83 in question to be paid to him in addition to
damages and the removal of the default notice requested on this counterclaim.

8. The defendant is in the process of gathering evidence from the data controller of
lloyds TSB plc regarding his banking history with the claimant with the intention of
adding up the charges in order to calculate the exact value of his counterclaim. The
defendant will provide the court and the claimants solictors with his findings once
the data controller has replied. The defendant is adding the sum of £11 to his
counter claim representing the sum of £10 paid to obtain the required evidence and
£1 in posting his request to the bank using 1st class recorded delivery (receipts
will be forwarded to the court as well as copies of correspondance sent to the
claimant to gather the required evidence)

If I hear back from the data controller prior to my 28 days to defend being up I will obviously amend again but if not this draft is likely to be the one submitted with values of charges and counterclaim being sent to court at a later date when I get my statements.

Any comments/suggestions??

[davethorp]

Just been thinking, is it worth me firing off a letter to SC&M pointing out that I will be defending the claim against me and counterclaiming to recover all charges + interest from the account and get the default removed and invite their offers of settlement??

Given they have loads of claims against them it might make them think twice about proceeding against me as Lloyds TSB are actually going to lose money once I've added the charges up

[bearo]

You could try it, you have nothing to lose although my guess is they won't be too bothered!

[davethorp]

Perhaps not but it at least shows the court that even at this very early stage I am prepared to settle doesn't it as copies will be forwarded to the court as well when I submit my defence

Proposed letter to their solicitors as follows

Claim ref xxxxxxxx

Lloyds TSB account number (xxxxxx)xxxxxxxx

Dear Sir/Madam,

I write regarding the above referenced claim. First of all I must thank you for commencing court action as you have saved me a job as I was considering launching action against lloyds TSB myself.

The £312.83 you are claiming is made up wholly of charges and interest that has been deemed by the office of fair trading to be unlawful. In actual fact these charges make up the balance in question and then some. As a result of this I will be defending your claim against me and counterclaiming for the additional charges plus interest and removal of the default notice against my account (correction or amendment will not be acceptable).

I am in the process of gathering evidence which will aid me in my defence and am confident that, given the overwhelming number of similar claims that are ruled in the customers favour, I am able to successfully defend the claim against me and counterclaim against Lloyds TSB for the remaining charges and interest on all the charges as well as my costs in defending the claim and gathering evidence.

As such I invite your offers of settlement in this matter. Copies of this and all correspondence between yourselves and I will be forwarded to the court once my defence is prepared and jurisdiction determined.

Yours Sincerely




Mr David J Thorp

[davethorp]

Posted above letter to SC&M. I await their response with baited breath (though don't expect any favourable response)

[davethorp]

Has anyone else realised that if you take the initials of Lloyds TSB's solictors "Sechiari Clark and Mitchell" it spells the word SCAM

Sounds about right

[davethorp]

Got a potential problem. My SAR was sent 1st recorded 12 days ago. Online track and trace is still not showing delivery information. Do I need to be worrying that they haven't got it for some reason?

[DSM]

I tell you what, I've just been on the blower with Royal Mail following up a letter I posted last week. I was told to start worrying if it has not been delivered after 16 working days i.e. posted 26/10 - start freaking out :o 14/11! Can you believe it?

Dee

[davethorp]

Well they received it and posted my statements to me. Turns out that I don't owe them £312.82. They owe me £224.97

I submitted my defence 2 days before recieving the statements though as I did not want to forget. The defence and counterclaim went as follows:

DEFENCE

1. The defendant had an account ("the Account") with the Defendant which was opened
on or around January 2004 and the defendant agrees with the claimants statement that
this account was closed on 31/01/06 but disagrees with the default notice and
balance outstanding for reasons below.

2. During the period in which the Account was operating the claimant debited
numerous charges to the Account in respect of purported breaches of contract on the
part of the defendant and also charged interest on the charges once applied. The
defendant understands that the claimant contends that the charges were debited in
accordance with the terms of the contract between itself and the defendant.

3. The defendant submits to the court that the allegded outstanding balance of
£313.83 is made wholly of these charges and interest and further charges charged as
a result of them. The defendant did make the claimant aware of this fact during a
number of telephone calls from the claimant however it has become clear to the
defendant that the claimant has not taken this fact on board

4. The Defendant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine
pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the
Claimant in respect of any breaches of contract on the part of the Defendant; and
are not intended to represent or related to any alleged actual loss, but instead
unduly enrich the Claimant which exercises the contractual term in respect of such
charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is
unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts
Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. On this basis the defendnat denies any liability to Lloyds TSB regarding this
outstanding balance.

6. The defendant posted a Subject access request under the terms of the data
protection act to the claimant requiring the claimants to disclose a record of the
defendants full account history with the claimant in order to aid in the defendants
defence. This request and the statutory £10 fee was posted on 18/10/06 and deemed to
be recieved on 20/10/06. Under the data protection act the claimants have til
29/11/06 to comply with the request. In the event that the claimants do not comply
with this request the defendant asks the court to order compliance with the data
protection act as the defendant cannot defend against this claim without the
required information. The defendant will make a further petition to the court if
this action is necessary. The defendant reserves the right to claim damages in the
event of non complance with the data protection act.

7. Until the required information is recieved by the defenant the defendant reserves
the right to counterclaim in the event that the balance claimed by the claimant is
less than the total unlawful charges, resulting interest, and contractual interest
added at lloyd's TSB's unathorised borrowing rate on the basis of principle of
mutuality, or reciprocity that applies to the contract between the claimant and
defendant. The defendant also requests a stay in relation to this case until the
claimants comply with the defendants Subject access request and the defendant is
able to submit a full defence and/or counterclaim to the court

8. The defendant would also like to bring to the courts attention that immediately
upon recieving the court papers from this claim the defendant contacted the
claimants solicitors pointing out the reasons for defence and potential counterclaim
and inviting offers of settlement. No response was recieved by the claimants
solicitors and a copy of the letter sent will be forwarded to the court in due
course. The defendant is more than willing to negotiate with the claimants solictors
to avoid the need for litigation. However the defendant submits to the court that
the claimant is not prepared to negotiate and ignores all correspondance sent to
them to attempt to settle.

COUNTERCLAIM

The defendant reserves the right to counterclaim once the information requested
under the data protection act from the claimant has been recieved.

The defendant will submit details of the counterclaim to the court once the
information has been recieved.

The defendant requests a stay in these proceedings until the claimant responds to
the subject access request under the terms of the data protection act as until this
information is recieved the defendant is not able to defend or counterclaim against
the claimants claim

In the event of the court ruling in favour of the defendant in respect to either the
claim or the counterclaim the defendant asks the court to order the claimant to
remove the default notice entered into his credit record by the claimant. The
defendant will only accept removal and not correction or ammendment

As I have recieved the details I need I am going to be sending the following letter to the court and their solicitors.

I write regarding my defence of the above referenced claim. I can now confirm I have received the information I required from the claimants and am now able to fully defend the claim and counter claim against lloyds TSB to the value of £214.97 at time of writing including interest at 8% as dictated by the court system. The following points need to be added to my defence.

1.The defendant, on receipt of his account history has calculated the value of the unfair charges, interest debited from the defendant by the claimant as a result of these charges, and interest of this whole balance at 8%pa. A schedule of charges is attached to this letter and the court is asked to note the total value is £527.80. As lloyds TSB are only claiming an overdrawn balance of £312.83 the defendant asks the court to strike out the claim against him as the total owing to him is greater than the amount claimed by Lloyds TSB.
2.On the basis that the charges are unlawful as set out in his initial defence the defendant denies any liability to the claimant.

The following points will be added to the counterclaim

1.As the value of the unlawful charges is greater than the value claimed against the defendant, the defendant counterclaims against the claimant to the value of £214.97 which is correct at time of writing this letter however the defendant is claiming interest at 8%pa until either settlement or judgement and so interest is accumulating daily on the whole charges of £527.80
2.The defendant also counterclaims the £10 fee he had to pay under the data protection act to Lloyds TSB to obtain his account history. This brings the total value of the counterclaim to £224.97 as of 11/11/06
3.As the defendant is clearly not in default of this account and any default brought against the defendant was clearly as a direct result of these unlawful charges the defendant asks the court to order a removal of the default notice against his credit file. Mere correction or amendment of the notice will be unacceptable to the defendant
4.The defendant seeks compensation at the courts discretion for damages resulting from the default notice being placed against his account when he was not in default.


I trust the above will be added to the claims file. I enclose an application for exemption of the court fees relating to the costs of my counterclaim.

Yours Sincerely



Mr David J Thorp

encl to court Copy of letter to claimants solicitors inviting settlement offers which went unanswered

cc Claimants Solicitors

[davethorp]

allocation questionnaire received today, filled out and returned to court and SCAM. Claim transferred to Preston county court

[BARTY]

Good luck Dave!!
Barty

[m55dlc]

ltsb are currently doing the same thing to me, but for £2650. They owe me £7600 on this account so, surprise surprise, SCaM haven't filed their aq. I'll keep my eye on this one as you seem to only be a couple of weeks behind me.

[davethorp]

m55dlc do you have a thread for your case. As we seem to be the only two people doing this backwards at the moment it would be good if I could monitor your thread too especially as you are 2 weeks ahead of me at moment.

Barty thanks for your message of good luck though I don't think I'll need it as only difference with my claim is Lloyds made the silly decision to try and claim against me and I'm counterclaiming back and claims the other way are being settled left right and centre.

Think SCAM have until 9th December to return their allocation questionnaire. Mine was hand delivered back to the court today along with a covering letter as follows which was also forwarded to SCAM

I write regarding the above referenced claim. Further to your letter to me of 20/11/2006 I return the completed allocation questionnaire. I also enclose another form EX160 for exemption from the fees relating to my return of the allocation questionnaire. As you have not returned the evidence of my entitlement to me when I applied for exemption of my counterclaim fee I am unable to provide evidence again however as you are still in possession of the evidence I do not see this being a problem.

You will note that I have ticked “no” to section A asking for time to settle. My reasons for doing this are that at two points during this claim I have written to the claimants solicitors inviting offers to settle. The court is in possession of both these letters dated 18th October 2006 and 11th November 2006. I am willing to settle this case without the need for further action or a hearing however the claimants solicitors have failed to respond to my letters and as such don't appear to be willing to settle. As such unless the claimant starts to demonstrate a willingness to settle there is no need for a one month stay in these proceedings and such a stay would be a waste of time. Of course if the claimant does intend to start making settlement offers I will of course welcome a one month stay to allow this discussion between the claimant and myself as long as the claimant does start making settlement offers in relation to my counterclaim.

A copy of this letter and my allocation questionnaire is being sent to the claimants solicitors. For their and the court's benefit the total value of my counterclaim up until the date of this letter including interest at 8%pa and the S.A.R - (Subject access request) fee that I am also claiming back is £226.21 (£539.04 made up of charges and interest taken from my account and interest on that balance til 22/11/06 minus £312.83 that the claimant is claiming). Interest is accumulating on this amount on a daily basis.

I look forward to hearing from the court regarding a hearing date and to receiving any offers of settlement providing the claimants solicitors can be bothered to reply to this third letter.

Yours Faithfully



Mr David J Thorp

[m55dlc]

Yes, I do have a thread. Mine's called 'Bank has preempted my court action and is taking ME to court'. My last post was on 22nd November. I phoned the court on Tuesday and the court officer said she was going to chase SCaM for their aq, which was 8 days late at that time.

My issues with ltsb go much further than just charges, I've got missed SAR's, fraudulent withdrawls, failure to provide copies of other documentation and further non-compliance with SAR's (including falsifying and deleting entries). As soon as this issue is fixed I'm going after them for over 18k.

[davethorp]

Well SCAM have 4 days to return the aq. If they aint done by then I think a call to the court after the weekend would be in order