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hey there well thanks for the advice have just sent prelim out so when it comes to claim time ill bear that in mind i think with the 8% statutory it clocks in at 3400 though so depends how comlicated that makes it cheers
If you opt for contractual interest you really need to include the calculations in the preliminary letter and lba, you should not just add it at N1 stage.
Hi
If you are just claiming the 8%, you don't put it in the Prelim or lba, but if you are claiming for contractual interest you need to claim it from the first letter.
Good luck!
Barty
hey there everyone was wondering when it comes round to filing the claim at court is there anyway of specifying that you dont want the money to be paid into the bank account in question ?
right having read throught the huuuger posts on contractual interest namely a new way... mindzais one and why is no one claiming... have decided to start from scrach wi the prelim again havent done the spreadsheets yet though ! thats for tonight ha ha will post up my attempts to see if i get this right !
hello everyone again right am a bit of a total noob at this so dont all laugh at once !
but have used the spreadsheet from our friends at penaltycharges and done my girlfriends revised prelimary with the Lloyds Unauthorised 2.20% monthly 29.8% EAR as my benchmark
I only have full statements upto 21/09/2001
after that it’s a series of charges labelled as such:
date >>type >> description >>cr/dr
21/09/2001 >> Chg>> unpaid d/d >> 82.50 dr
so want too sure about how you go about figuring out your own rate either
right then folks after much reading and pilfering of other threads namely memmochsa !
have put together the lba with contractual interst included what do you guys and gals reckon to this.....
LLOYDS TSB BANK PLC
25 GRESHAM STREET
LONDON
EC2V 7HN
Since my previous letter I now understand that the principle of mutuality, or reciprocity, applies to the aforementioned contract, and I would ask you to note that I am adjusting my claim to include compound interest at Lloyds TSB Bank Plc’s standard overdraft rate of 29.8% EAR.
I am applying this rate of interest to the monies that Lloyds TSB Bank Plc has unlawfully deducted from my account over the years, on the principles of implied mutuality and reciprocity, and unjust enrichment.
I now understand that the regime of 'fees' which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations.
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.
I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.
I calculate that, as at today’s date, you have taken a total of £3,099.00
In addition, I also claim Contractual Interest (compounded) under the principle of mutuality and reciprocity in our contract.
As Lloyds TSB has taken unlawful charges from my account, this constitutes unauthorised borrowing – thus, the rate of Contractual Interest used is the bank’s unauthorised borrowing rate. The standard rate of unauthorised borrowing set by Lloyds TSB is 29.8% (see Lloyds TSB: Current Accounts - Rates & charges), therefore this rate is added to the above amounts and the breakdown is shown on the enclosed schedule. I calculate the Contractual Interest element (to 2nd January 2007) at £5,368.60
. I am enclosing a revised copy of the schedule of the charges which I am claiming.
Additionally if you have entered a default notice against my credit record, this default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.
In addition to full payment of the sum mentioned above I require that you remove any default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.
I require repayment in full of this money and removal of the default notice. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.
Thats fine. Just so long as you are fully aware of the principles and issues of claiming the contractual rate and are willing and prepared to argue them in front of a judge. They won't pay it without a fight and there are risks involved, although of course there is always an element of risk in any case. I personally favour the lower authorised rate, but thats JMHO.
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hello everyone hope all is well
we are close to the filing a claim stage now and are going to do a hard copy N1 as and have done the POC similiar to mcuths but i am wondering whether or not you submit all the back up information as provided in the basic court bundle, copies of statements, all correspondence letters etc ?
1. The Claimant has a Select Current Account, number x (“the Account”), opened at the Defendant’s xxxx branch (sort code x) on or around xxxxxx
2. The Account is governed by the Defendant’s Personal Banking terms and conditions (“the contract”)
3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “unpaid d/d”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.
4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.
5. A schedule of the charges and overdraft interest applied is attached to these particulars of claim (Appendix 1), with copies of the 38 statement pages that itemise the charges and interest charged thereon.
6. The claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to account defaults
7. The claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current account agreements.
8. The Claimant thus contends that:
a) The charges debited to the Account:
i) are punitive in nature;
ii) are not a genuine pre-estimate of cost incurred by the Defendant;
iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract
on the part of the Claimant;
iv) are not intended to represent or relate to any alleged actual loss, but instead unduly
enrich the Defendant which exercises the contractual term in respect of such charges
with a view to profit.
b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999)1999 Para. 8 and Sch.2(1)(e (pages xxx), the Unfair Contract Terms Act 1977 s.4 (pages XXX) and the common law.
c) The Claimant believes these charges to be a penalty.
Penalty charges are irrecoverable at Common Law.
The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963.
It was held that a contractual party can only recover damages for an actual loss or liquidated losses.
It is clear that these charges do not reflect any actual and or real loss.
c) In the alternative to a) b) and c) above, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982 (pagesxxxx)
9. Contractual Interest
a) The Claimant claims compound interest on the amounts claimed
Under the principles of mutuality and reciprocity in the contract between the Claimant and the Defendant using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.
b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.
c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is deemed as unauthorised borrowing by the Defendant.
It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.
For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).
Regulation 5 (1) of the UTCCR states as follows:
5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”
Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a principle of a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant).
The interest claimed is therefore deemed to provide an equitable remedy.
In the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate advertised by the Defendant’s website, being 29.85% EAR.
The Claimant understands that the unauthorised borrowing rate at the time of opening the account was actually over 33%, but believes that using the current rate gives a fair result.
d) In the alternative to c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s lowest current authorised borrowing rate for a Select account, advertised by the Defendant’s website, being xxxxx% EAR.
e) In the alternative to c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year
f) Schedules of interest calculated and are attached to these Particulars of Claim as follows:
Appendix 2 – Compound interest calculated daily at an annual rate of 29.85%
Appendix 3 – Compound interest calculated daily at an annual rate of xxxxx%
Appendix 4 – Simple interest as per s.69 of the County Courts Act 1984 at an annual rate
of 8.00%
Appendix 5 – Print of the Defendant’s website showing the current borrowing rates
(relevant paragraphs marked with an asterisk on pp2&3)
11. Accordingly, the claimant claims:
a) The return of the amounts debited between 22nd September 1997
and 17th February, 2007 in respect of charges in the sum of £xxxxxx,
b) Any applicable Court fees
c) Compound interest at the contractual rate of 29.85% EAR from the date of each transaction to 17th February, 2007 of £xxxxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx
d) In the alternative to c), compound interest at the contractual rate of xxxx% EAR from the date of each transaction to 17th February, 2007 of £xxxxxxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxxxx
e) In the alternative to c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 17th February, 2007, of £xxxxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxxxx
Statement of Truth
Dated this 17th February , 2007
I believe that the facts stated in these particulars of claim are true.
well i have altered the rates as its 29.8% the higher and 16.8% authorised now
but i have a query about the amount she is claiming -
what do i put in the value as total penalties come in at £3,364
Yet with the unauthorised rate that bumps upto a massive £8,726.35 - £5,362.35 of interest !!
and at authorised its upto £5,800.74- £2,436.74 of interest
and staturory £4,247.62 -£883.62 of interest.
Do i say am claming a total no more than £9000 am sure i read somewhere you just but the amount excluding interest ?
right well tried filing at the county court today and the clerk refused to let me saying i needed to choose whether was claiming the contractual or statutory !
on the n1 form this is what i put in (i copied off someone else s so cheers)
Brief details of claim" The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.
"Value"
Penalty charges in the sum of £3,364
Interest to be determined as the Court deems just, as per section 9 of the attached Particulars of Claim, with the maximum to not exceed £6000
.
A maximum total of £9000
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £2.43 per day or at such rate and for such periods as the Court deems just, according to section 10 of the attached Particulars of Claim.
donnas shining knight to the rescue ??
! sent prelim letter today wish me luck !
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