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Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Well "hi" all.....
and welcome to this new thread....
Settled three claims so far (one with barclaycard just last week) and its about time I 'fired off' some more, including my
Lloyds TSB Visa Credit Card (formally MoreThan)...
I am about to submit my claim form direct to the bank (a first for me as up until now I have used moneyclaim online). This was a neccessity bearing in mind the much longer 'particulars of claim' (POC) for the contractual interest part (another first for me)....
To date:
2/11/06
Sent my prelim letter asking for charges+interest
I sent to:
LLOYDS TSB CARD SERVICES SUSSEX HOUSE 1-9 GLOUCESTER PLACE BRIGHTON BN1 4BE
Re: Innocent vs LLOYDS TSB VISA CARD (CONTRACTUAL INTEREST)
Ok my draft POC
(a huge thankyou particularly to 'mccuths vs RBos' thread:
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 £xxxx and interest charged thereon in the sum of £xxxx. Interest to be determined as the Court deems just, as per section 8 of the attached Particulars of Claim, with the maximum to not exceed £xxxx. A maximum total of £xxxx.
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £xxxx per day or at such rate and for such periods as the Court deems just, according to section 8 of the attached Particulars of Claim.
"Particulars of claim"
1. The Claimant has a xxxx Account, number xxxx ("the Account"), sort code xxxx) on or around xxxxth xxxx xxxx;
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 "Late Payment Fees", "Unpaid direct debit Fees", "Overlimit Fees", etc.. on the part of the Claimant and also charged 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 interest applied is attached to these particulars of claim; (Appendix xxxx);
6. The Claimant will rely on the Office of Fair Trading’s ("the OFT") statement of 5th April 2006 concerning default charges in credit card contracts;
7. 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) Further to 7.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.
c) 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) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 7.a), b) and c), 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.
8. Contractual Interest
a) The Claimant claims compound interest on the amounts claimed under the principle 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 unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate, being xxxx% EAR;
d) In the alternative to 8.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 xxxx Account, being xxxx% EAR;
e) In the alternative to 8.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) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Compound interest calculated daily at an annual rate of xxxx%
Appendix xxxx – Simple interest under s.69 of the County Courts Act 1984 at an annual rate of 8.00%
Appendix xxxx – Evidence of the Defendant’s current borrowing rates
9. Accordingly, the Claimant claims:
a) The return of the amounts debited between xxxx xxxx xxxx and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of xxxx% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, 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 9.c), compound interest at the contractual rate of xxxx% EAR from the date of each transaction to xxxx xxxx xxxx of £xxxx, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx;
e) In the alternative to 9.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 xxxx xxxx xxxx, of £xxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxx.
10. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Ok, I can update and change my POC considerably on this one....
but first I've made a mistake by using the wrong contractual rate within my lba....
(confusion over me and dad both having same first initial and same surname living temporarily in the same household both having a credit card with the same company: Lloyds....... on two different rates!?! And I kept his "update to t's and c's paperwork thinking it specified my rates )
I'D RATHER MAKE A MISTAKE NOW THAN LATER THOUGH
So, first, I will have to re-issue my LBA which I will post here shortly....
On my statements the 'cash advance' rate is 1.356% a month....
Thankyou for your latest letter dated 29th January, 2007. As you are no doubt aware from our previous correspondence, the amount in dispute, recalculated, as of today's date, is £352.00 in penalty charges taken plus £157.01, which you have charged me in interest for the sum which you have taken - a total of £509.01. In addition, I am also claiming Contractual interest (compounded) under the principle of equity, and a legal requirement for fairness and balance, at 'Monuments' cash advance borrowing rate of 17.54%. The Contractual Interest element is (to 12th March) is £236.70. The grand total of the above is £745.71, and once again, I enclose a schedule. Whilst I appreciate your 'gesture of goodwill' offer of settlement of £161.00 credited to the above account, regretfully I cannot accept it on the terms that you have outlined. I would however, be prepared to accept it as a partial settlement, on an unconditional basis and paid directly to me by cheque within the next 10 days. Immediate Full and final settlement can be achieved by a cheque for the grand total of £745.71, within the next 10 days. To enable you to fully reconsider my claim, I am prepared to allow an extension to previous timescales and will give you until Saturday 24th March 2007. At this deadline, failure to comply with this request will result in legal action against you for full recovery, without further notice.
I have been trying to resolve this now approaching 6 months. I am aware that their have been many other similar claims, all of which, you have settled in full before appearing in court. I am sincerely trying to avoid any court action and costs, and have sincere dialogue with you about this matter one final time. I trust this clarifies my position. Yours faithfully
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Bar the last paragraph it looks fine to me.
I have been trying to resolve this situation for the last 6months
Leech
http://www.consumeractiongroup.co.uk...tml#post436526 click my scales if you think i am helpful ! yes LHS down there !! Once more into the breach dear friends,once more or close the wall up with our banks dead , The games afoot,follow your spirit and upon this charge Cry 'God for Harry' England and St George Henry V battle of Agincourt 1415
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Ok, due to submit N1 Monday....
I've been thinking a little about what GlennUK said (13th March 2007 POST 1546 "Why is no one claiming the contractual rate of interest???" thread) which was:
Personally i wouldnt put 8% in the alternative or indeed anyhting else (i did in my orignal claims) instead i would simply put the CI in with 'or at an appropriate rate determined by the courts in the laternative'.
It wont stop banks paying or offering 8% but it will stop them saying that this offer is in accordance with your POC which i believe some of them have.
Incidentally as far as i can make out the judges are quite capable of making an award of interest at whatver level they feel fit as long as interest forms part of the POC.
Wondering whether just to claim for the cash advance rate or "at an appropriate rate determined by the courts in the alternative"....
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Hi Innocent
The working out of the interest rate is at the different amounts gets very complicated. Somepeople use an average figure on each charge.
1.167% + 1.356% = 2.523%. . this is not compounded though. For that you will need the APR they charge you.
Your APR works out at 34.85%. .using a calculator found here:
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Cheers avaitor........ a very useful tool and link
With reference the POC though........ what would you claim in "the alternative"...... would you put the 8%........ or leave it as the court deems just??
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
I would use as the court see's just. You never know the judge may give you more than the 8% but not the full Contractual. You should use the N1 for the POC for Contractual as you need more space to add the daily rate.
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
"Brief details of claim"
The Claimant seeks the return of penalty charges and interest charged thereon, debited to the Claimant's credit card account by the Defendant, and interest on these amounts as defined by the contract between the parties.
"Value"
Penalty charges in the sum of £xxxx and interest charged thereon in the sum of £xxxx. 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 £xxxx. A maximum total of £xxxx.
Plus any applicable Court fees.
Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £xxxx per day or at such rate and for such periods as the Court deems just, according to section 9 of the attached Particulars of Claim.
"Particulars of claim"
1. The Claimant has a 'Lloyds TSB Mastercard' Credit Card Account, number xxxx xxxx xxxx xxxx ("the Account"), opened on or around xxxx xxxx xxxx;
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 "Late Payment Fees" and "Overlimit Fees", etc.. on the part of the Claimant and also charged 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 interest applied is attached to these particulars of claim; (Appendix 1);
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;
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) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.
c) 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) paragraph 8 and schedule 2(1)(e), the Unfair Contract Terms Act (1977) section4, and the common law.
d) In the alternative to 8.a), b) and c), 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.
9. Contractual Interest
a) The Claimant claims compound interest on the charges and interest applied thereon to the claimant's account ("the principal claim"), at XXXX%APR. This is the rate currently applied by the defendant to the claimant's 'cash advance' rate of borrowing of the defendant's monies, as provided for in the said contract.
The Claimant's case for claiming this rate is based in equity, and a legal requirement for fairness and balance. The Claimant holds that this rate applies to drawings by the Defendant as well as the Claimant.
The Claimant deems the defendant's principal indebtedness to the claimant to be a 'cash advance', since it is comprised of charges that are unconscionable, remain unsubstantiated, and the amount to be unenforceable penalties in law. If the defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the claimant's account breaches. Since the defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the claimant is aware that the defendant has failed to defend any other similar claim, choosing to settle before the trial date, the claimant deems the defendant's charges to the claimant's account to be indefensible, unenforceable at law, and unauthorised cash advances, since 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 and interest thereon to the claimant's 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:
Unfair Terms
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 mutual or reciprocal term permitting the customer to apply the same rate of interest on any 'cash advance' withdrawls from the customer's account by the credit card company (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.
b) In the alternative to 9.a), should the court deem that the claim does not merit the application of the defendant's 'cash advance' lending rate, the claimant claims interest at an appropriate rate determined by the courts in the alternative.
c) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:
Appendix 2 – Compound interest calculated daily at an annual rate of XXXX%APR
Appendix 3 – Evidence of the Defendant’s current borrowing rates
10. Accordingly, the Claimant claims:
a) The return of the amounts debited between xxxx xxxx xxxx and xxxx xxxx xxxx in respect of charges in the sum of £xxxx, together with interest charged thereon in the sum of £xxxx – totalling £xxxx;
b) Any applicable Court fees;
c) Compound interest at the contractual rate of XXXX%APR from the date of each transaction to xxxx xxxx xxxx of £xxxx, 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 10.c), interest at an appropriate rate determined by the courts in the alternative, from the date of each transaction to xxxx xxxx xxxx , and also interest at the same rate up to the date of judgement or earlier payment.
Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Sorry to hijack your thread innocent, but i sent n1 form off against Lloyds tsb mastercard and claiming simple contractual interest. But the court have sent my forms back saying i need to supply agreement showing the rate of interest. I just sent the n1 form and list of charges. Did you need to send anything else? Not sure if a copy of there terms and condition will do or if i need to provide my actual signed agreement.
In this N1 POC I included within my appendix a copy of the interest rates charges (taken from their website)...
'a screen print'.... this is what I would recommend
Hope this helps
Innocent
Originally Posted by bluedannyw
Sorry to hijack your thread innocent, but i sent n1 form off against lloyds tsb mastercard and claiming simple contractual interest. But the court have sent my forms back saying i need to supply agreement showing the rate of interest. I just sent the n1 form and list of charges. Did you need to send anything else? Not sure if a copy of there terms and condition will do or if i need to provide my actual signed agreement.
Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
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Re: Innocent vs LLOYDS TSB MASTERCARD (CONTRACTUAL INTEREST)
Originally Posted by bluedannyw
