kimmy v abbey NO ****2****

[kippy2]

having read sfrench fantastic thread today. ...got me wondering have i got statemtents going back to when opened the account and blow me down with a feather I have and blow me down again £1,600 charges without contractural or 8%! these charges go back to 1994-2000 so im gonna give it a whirl. will need help though as didnt claim contractural intrerest on last biggy claim :o which i won in october.

 

so first question what rate of interest are peeps claiming for contractural interest pretty please thanks

 

its good to be back

[kippy2]

have read bish, glennuk and srfrench threads. so going for contractural rate of 28.7%

 

so here goes.. this will be fun not :o

[bish]

Hi Kimmy

 

I have posted on a number of threads regarding contractual interest and what I conclude is that the main point of the claim is for refund of unlawful penalty charges under common law. The issue of interest is, at the end of the day, down to the judge to award. As no bank wants to enter a court room or disclose how they arrive at their charges, the sticking point for any claim is the interest. In other words if you apply contractual interest to your claim will the bank drag it out even longer and still dispute the interest and defaults at any hearing, as with Glenn. The risk is that the bank will settle the charges part of the claim and then proceed to court regarding the interest. I do not know weather they can do this and avoid disclosure of the charges, as the charges are no longer an issue, as with Glenns claim. Glenn did say that he did not say 'without predjudice' in his out of court talks with the abbey brief. I am thinking on the hoof here, but I think there is room to get them over a barrel here if you approach it in the right way. The abbey settled my claim because I was not claiming contractual interest like Glenn at the allocation hearing. I think they would have attended if I had. The way to go is if you go for contractual interest then any discussion outside any type of hearing must be 'without predjudice' so as to avoid settlement on the charges part of your claim. The whole claim must then be heard and we know that they don't want that. Sorry for the long drawn out reply. I will be watching your progress with interest (pun).

 

Regards bish.

[kippy2]

hi bish thanks ever so much for your reply will indeed take it on board. right what im going to do is do a spready for CI and one for 8% and make my decision then which to go for. will take my time with this one dont want to cock up! :o

 

thanks again kimmy

[Glenn UK]

I agree with Bish

 

Glenn

[kippy2]

I agree with Bish

 

Glenn

 

thanks for reply glen

 

im now thinking of ,halfway, doing authorised rate as opposed to unauth. my reason being is that i know for sure i would not be able to crack this in court on my own due to medical reasons. trying to be fair here but in all honesty quite hard to do when i know what absolute misery they caused my family like the rest of us on here.

 

time to ponder over the weekend.

[moneymania]

Hiya Kimmy

 

I have a feeling they may settle your charges & 8% and fight for the contractual. But at the end of the day, you got what you set out to get originally.

[bish]

Hi Kimmy

 

Do not want to put you in a catch 22 position, but the point I have tried to make to a number of people is that, if the banks do not want to enter a court to prove that the penalty charges are lawful, you have them by the B***oks. Because as long as you keep the charges and interest all one claim they can not enter court. Therefore they must settle whatever the claim for interest, It is the judge that decides weather he will allow interest to be added at 8% or 27%. If it never reaches court, as seems to be the case, then it is us who decide the interest. The simple fact that the banks will not face couirt means that as long as you avoid Glenns not without predjudice discusions then in theory you should get the contractual interest. Unless one of the banks would like to step into court and prove their charges. Sorry Glenn to use your case as an example, but it is a good example and one to use.

 

Regards bish.

[Mad Nick]

Guys, re keeping the charges and interest together, I don't think the "Without Prejudice" tactic is the answer. All Abbey have to do is approach the Court at any stage and state they are settling the charges and challenging the interest. They could do that as early as the N1 stage by just defending the interest. No, what this needs is a solid argument to pre-empt them doing it or convincing a judge that they can't do it - that's how Glenn got caught out.

 

Learning from Glenn's recent experience, I posted this line of argument on GENERAL and got little response - which I'm interpreting as meaning it's an OK argument otherwise people would have rubbished it. The crux is that the charges and interest both stem from the same "mistake of law" - a very important legal term. It only applies to claims for return of contract interest charged (ie the authorised rate) not us charging them the unauthorised rate.

• that the charges were "had and received" by the Bank resulting from a "mistake of law" (ie they turn out now to be unenforceable in law)
  
• that the interest levied on the charges results directly from the same "mistake of law"
  
• that the "law of restitution" provides for reversal of the Bank's "unjust enrichment" arising from that "mistake of law";
  
• that these claims pass the standard 3 tests for "unjust enrichment"
  
• that the most significant case law to support all of the above is Deutsche Morgan v Inland Revenue

Regards, Mad Nick

[kippy2]

thanks everyone for your replies....got some more reading to do me thinks. firstly ive got to sit down and do spreadies for auth and unauth rate and see what that brings up. as want to keep it below 5k

 

does anyone know in abbey forum how many have been settled with CI beyond six years claims..

 

thanks again everyone.

[Glenn UK]

Guys, re keeping the charges and interest together, I don't think the "Without Prejudice" tactic is the answer. All Abbey have to do is approach the Court at any stage and state they are settling the charges and challenging the interest. They could do that as early as the N1 stage by just defending the interest. No, what this needs is a solid argument to pre-empt them doing it or convincing a judge that they can't do it - that's how Glenn got caught out. This is not quite correct, my mistake was they made me an offer and i never insisted the discussions were without prejudice. This allowed them to inform the court that they had made an offer which i had refused.

 

The only offers of settlement they can put before the court are those which are full settlements as per the particulars of claim, anything less than you ask for cannot if the discussions are WOP.

 

You should also bear in ind that mine was an allocation hearing, where most of us don't expect to have to argue our claims in full, because i allowed them to raise the settlement offer because of my mistake i ended up having to debate a lot more than one would have expected. It was a mistake but the primary mistake was in not insisting on a WOP discussion.

 

Learning from Glenn's recent experience, I posted this line of argument on GENERAL and got little response - which I'm interpreting as meaning it's an OK argument otherwise people would have rubbished it. The crux is that the charges and interest both stem from the same "mistake of law" - a very important legal term. It only applies to claims for return of contract interest charged (ie the authorised rate) not us charging them the unauthorised rate.

 

Nick, you are still talking about the interest you have paid if i am not mistaken? I am not aware of any great arguments being made against reclaiming this either from the claimants or defendants.

 

Its interest you charge on the lot that causes the big deal. This is because if you apply the contractual rates you apply it for the time period from when the charge and interest were paid until the date of settlement, in my case this increased the theoretical value of my claim seven fold. This is why its such a big issue for the banks.

• that the charges were "had and received" by the Bank resulting from a "mistake of law" (ie they turn out now to be unenforceable in law)
  
• that the interest levied on the charges results directly from the same "mistake of law"
  
• that the "law of restitution" provides for reversal of the Bank's "unjust enrichment" arising from that "mistake of law";
  
• that these claims pass the standard 3 tests for "unjust enrichment"
  
• that the most significant case law to support all of the above is Deutsche Morgan v Inland Revenue

Regards, Mad Nick

 

There doesn't appear to be anything wrong with what you are saying, but it isn't enough to argue for the interest you are charging them under the contract on top of what you have paid IMHO.

 

Glenn

 

PS thats what i was trying to clarify what 'contractual interest' you are talking about since it seems what you and i (and many others) are claiming appear to be significantly different.

[bish]

Hi Kimmy

 

Got a bit of a discussion going here, but relevent to your claim. I agree with Glenn here, and the point I am making is that if you replace the S69 8% interest with the banks contractual interest, to argue against the contractual interest the bank would have to enter court to defend the whole of the claim. As we all know by now the banks can not defend the penalty charges, which is the main part of the claim. If they wish to enter court to defend just the interest 1. They have to disclose or 2 They have to seperate the claim as they did in Glenns case. As Glenn said he was not expecting what happend at an allocation hearing, I was a bit taken aback by it and was expecting the same treatment at my allocation hearing. When they settled my claim I thought why ?, the only reason I could think was the contractual interest.

 

If they can not seperate the claim as they did with Glenn, then they either have to enter the full hearing or pay up, catch 22. If any one finds themself in Glenns position, they must state without predjudice in any dealings prior to the full hearing or at least wait for non complience to directions. This is just my thoughts on the contractual interest business and I could be wrong, and will stand corrected if anyone can argue a good case to the contrary.

 

At the end of the day it is about forcing a bank into court, Which this could well do if the charges are sufficiently high enough that the addition of contractual interest pushes the claim into substantial sums, or everyone applies CI. Also all interest at a hearing is at the judges discretion.

 

Regards bish.

[kippy2]

hi guys..indeed opened a discussion here thanks helps me alot...ive finally decided tonight after brain overload from reading so much on here, im going for CI at the unauth rate they really put myself and my family through hell. when times were good they upped the overdraft like nobodys business then when the business went into trough mode which affected our personal account obviously, they then closed our account...nice bunch of peeps arnt they. they havent won though as business is booming again...

 

so with the help from you guys im sure i will be fine, like ive said before its not like im new to abbey. a fast track claim without CI was settled in oct, wont disclose how much coz walls have big ears!

 

ive got aq to do on other claims first then will settle down to do spready for this...

 

thanks again guys for input much appreciated

[bish]

Hi Kimmy

 

Glad we are of assistance, if you use the right spreadsheet you can just change the interest from 8% to 27.8% and the spreadsheet will do all the calculations for you. Hope I am not teaching granny to suck eggs.

 

Regards bish.

[kippy2]

bish you are teaching granny ...so will need assistance im sure...point me to the right spreadsheet. sfrench has kindly emailed me what he used...will see how i get on with that first. blinking excel and all that...i use openoffice.

 

thanks again kimmy

[Mad Nick]

Glenn,

Its interest you charge on the lot that cuases the big deal.

I'm doing my best to keep cool here, but you just seem to keep on repeating the difference between the approaches. I know the difference. But what argument and Case Law have you come up with to justify "your" approach ? Regards, Mad Nick

[bish]

Hi Kimmy

 

I used the openoffice advanced spreadsheet, click on the box where it has 8% interest and in the formula/text tool bar change the 8% to the reqired figure, click on the green tick to change and recalculate the spreadsheet. Any probs then let me know.HTH.

 

Regards bish.

[Glenn UK]

Nick

 

I'm not sure what you are on about either i am not talking about different approaches at all.

 

There is no problem claiming money you have paid out.

 

Claiming contractual interest on top of what you have paid out is where the problem is at.

 

You seem to be claiming the former and trying to present and argument to help you, you don't need one, or at least i haven't since i have been paid out interest i have already paid without any problems.

 

I have also been paid out contractual interest on two of my four claims so far which is on top of the charges and the interest i paid.

 

So all i have been trying to get across to you is that what your posting appears to be an argument for claiming the interest you paid out and i don't see the problem needing case law to resolve.

 

If you need case law to claim back contractual interest on top of what you have paid out then it isn't coming across in your posts.

 

HTH

 

Glenn

[kippy2]

Hi Kimmy

 

I used the openoffice advanced spreadsheet, click on the box where it has 8% interest and in the formula/text tool bar change the 8% to the reqired figure, click on the green tick to change and recalculate the spreadsheet. Any probs then let me know.HTH.

 

Regards bish.

 

thanks bish will do....whoops in the middle of madnick and glenn...keeping out of that one so long as it helps me that fine

[Glenn UK]

Kimmy

 

 

soory if it appears to be a hijack Nick makes some good points but i think, and id be happy to be wrong, that Nick is on a different route to me and possibly a lot of other people and it needs to be clrea for all.

 

HTH

 

glenn

[kippy2]

glenn no problem, like i say if it helps me then thats fine. thanks for your input by the way hope it wont be the last.

[bish]

Hi All

 

Good to have heated debate, gets things resolved and points raised. It also helps to bring up points of view that you or we have missed. So hijacking can be good at times, I will go away thinking about Nicks, Glenns, Kimmys, and my own posts, and come back tomorrow with some relevent arguments I hope. It also saved me from watching loads of crap on the TV tonight, thanks guys and girls and goodnight.

 

Regards bish.

[kippy2]

Hi All

 

It also saved me from watching loads of crap on the TV tonight, thanks guys and girls and goodnight.

 

Regards bish.

 

:lol: likewise...goodnight and thanks for your help much appreciated

[kippy2]

hi bish have tried to start on spready but vamps spreadsheets/ones in teplates library wont let me open and when i do it all mush! dammit!

any other ideas which one did you use.

 

going to have a look at MINDZAI to see if can get that open.

 

thanks kimmy

[newbody]

kimmy i have 2 of vamps spreadsheets here her No1 spreedy which was for contractural intrest throughout claim and her No2 spreedy which was for compound contractural throughout claim i can email you both if you want but they are in excel format not sure compatability with open office and i cannot seem to find a link for free download of open office to try them in but if you want to pm me your email addy i can send them to you if you want them

 

found link for Open office 2.1 and they work ok with that