Debt Mountain vs Halifax (Bank of Scotland)

[debt_mountain]

I have been chasing the Bankof Scotland for my charges Debt Mountain vs BOS but I sent my prelim, LBA and N1 to Halifax (HBOS) as I wanted to go for a large amount of money >£5000 and 6 years so went for the Leeds Customer Relations folks (they did reply to my BOS letters so I am just replying to them) honest Mr Judge.

 

Any way HBOS are pulling the "we never got the court papers" but I am chasing that for them to ensure I don't have to file for a default judgement as that could delay things.

 

Called Cust Relations a few times today and it sounds likethey ave got the copy but are not willing to admit it. I will call the Court tomorrow to check if they faxed a copy.

 

There 14 days are up on Monday next week so hoping for a letter next week with an offer but I don't think they will like the authorised contractual interest I added!!!!

 

but what do they do, do they send out an offer, then we accept as part payment and will they send a cheque or will they take the huff again and not payup?

 

I know they will defend the contractual interest bit but will they still payout the rest after I send the part payment acceptance?

 

I don't have a BOS account anymore.

 

Thanks.

[debt_mountain]

Acknowledged on 29th but still awaiting my payout. I think another call to my pals at customer service.

 

they have til the 15th Dec to file the defence.

 

Its getting exciting now.......

 

update

 

Customer services had no idea that HBOS had aknowledged the claim but would speak with someone in litigation?

 

Useless chocloate teapots.

[debt_mountain]

Got bored waiting for customer Relations to call back, so called the legal department and actually got through to someone (01422 335 042 might help someone else) who took my details and said they would call back in 5 minutes.

 

Which they did, suprisingly. They then said they could not find 1 of my account numbers and could I please give them the Halifax roll number!!!! WHAT??? the bank don't know the account number.

 

Anyway, it transpires that I have claimed for the BOS account numbers (as that is who my accounts were with), but when Halifax took them over (merged) each BOS account was given a Halifax number, which my new friend could not find.

 

Luckily iin some of my earlier letters I had been given these numbers by a different department, so called him back and supplied the info.

 

He quickly checked the account and said, yes that was it and he would pass the info for processing. He said he was sorry but all I would get back was all charges and 8% not the 15.9% plus my 4.85% saving interest. They would defend this.

 

I should get my letter within 7 days.

 

So helpful when you get passed the monkeys.

 

So have prepared my part payment acceptance ready to fill in the amount.....

 

just got to wait now.

[debt_mountain]

Further call to the legal team to keep them on their toes. Pointed out to the person on 01422 335042 that they only had til next friday. they were a little surprised and said they would pass my file to the next department immediately, they will then check the charges are valid and send out the offer of all charges and 8%.

 

So the process is

 

N! served

legal team acknowledge

legal team verify the account numbers etc (couldn't find one in my case)

pass paperwork to department to confirm the charges

this department send out letter offfering to pay all charges + 8%

I reply saying thanks for the part payment

they send a cheque for charges and 8%

we meet in court to discuss the additional interest.

[debt_mountain]

Got an offer today of 75% ot the charges I asked for and 8% interest (I was asking for contractual)

 

I have part accepted it so long as I have cleared funds in 7 days but will be persuing for the rest.

 

Another nice xmas fund. another trip to Tenerife required (already booked Jan on Burmingham Midshires, June on Nationwide)

[hillards]

From what I've read, if you only accept as part-payment then they will withdraw the offer pending further action. Nothing will be paid at that stage as you've not accepted 'full and final settlement', which is a condition of the offer.

 

I've stayed clear of the contractual, and would settle for the full amount plus 8%. That's been the tried and tested method with most people, and I've yet to see anyone succeed in claiming contractual.

 

It's up to you if you persue that, I'll keep an eye open on progress.

[debt_mountain]

Hilards,

 

I have read mixed messages about BOS. Some say they payup the part payment once the N1 is in but not before but will put a defence in for the remainder.

 

Have other who claimed on BOS or Halifax get paid this part payment offer but the rest was defended?

 

The person I spoke with today on the phone, who read out the letter as I have yet to physically receive it, said the wording said that they would pay the £xxxx.xx but would defend the remainder. He (customer relations bod) said this looks like they will payup this offered amount but will defend the rest. Which does make sence as they know that if it did go to court (which it won't) they would have to pay the charges back + 8%.

 

I am happy to go for the contractual as I have nothing to lose, it does allow me the ability to make a reduced offer for out of court settlement, which did work well in 1 of my other claims.

 

will let you know what happens....

[hillards]

From what I can tell, they've agreed to cough up the charges plus 8%, but will not agree to pay the contractual instead of the 8%.

 

Maybe they will give you the main money now, and insist on a court case for the contractual part. I can see that going for a settlement before court on that would give you 'a little extra' LOL

 

Best of luck with it.

[debt_mountain]

Hilards

 

They are only coughing up about 75% of the charges, I am guessing it is 25% short because the earliest charges are older than 6 years from the date of issue (Nov) but not from my initial contact (April) as this was when I became aware of the unlawfulness and can prove it.

 

Yes, I laugh when I see the adverts on the tv and at the branches and just say "A little xtra" they certainly do. I really should send them a christmas card, or a postcard from Tenerife.

[hillards]

Ah - gotcha now, they will only go back the 6 years, if you want more then you have to fight them for it...

 

That may be why they are happy to pay up what they reckon they owe you, as they will be defending the remainder as being outside the timescale allowed.

 

I am watching to see how people go with that, although I've only minimal charges pre 6 years on my account so don't feel up to going through the process to get those back if it will affect the main claim.

[debt_mountain]

Ah - gotcha now, they will only go back the 6 years, if you want more then you have to fight them for it...

 

That may be why they are happy to pay up what they reckon they owe you, as they will be defending the remainder as being outside the timescale allowed.

 

I am watching to see how people go with that, although I've only minimal charges pre 6 years on my account so don't feel up to going through the process to get those back if it will affect the main claim.

it comes down to where the 6 years begin, I think it is when I firth became aware of the unlawful act, not when I started the court claim. Lets see where it goes from here.

 

The part payment is still a significant amount.

[hillards]

Now I remember my grandad telling me...?

 

I debated going back a bit further, on the grounds that I perhaps knew about their wrongdoings last time I got overdrawn - but started my action in October this year, so have only gone back 6 years from then.

 

Then again, the 18 months prior to the 6 year cut-off had no charges so it would not have mattered if I had said I was aware from last year.

 

Keep at 'em !

[debt_mountain]

been chasing the BOS for the part payment and constantly getting different stories from customer relations and the legal department.

 

Finally today it was confirmed that they had credited my account with the part payment.

 

My accounts the charges were for are both closed.

 

so went to the local branch with all my statements for both closed accounts and my driving licence and a utility bill just in case.

 

After 15 minutes digging the very helpful chap found the funds in an easycash account I had years ago that was still open.

 

so asked him to give me the lot. Nice crisp £100 notes. Another £5000 for Christmas.

 

Still progressing the rest through the courts.

[hillards]

And a very Merry Christmas Debt Mountain! At least they were able to find where the money had gone, I've only ever had one account with them so there's no chance they could do that to me.

 

I've to wait for their letter now, sign and return something, then they'll send a cheque. Not going to be in time for Christmas, but at least I got a settlement from them. (http://www.consumeractiongroup.co.uk/forum/halifax-bank/39442-old-dj-halifax.html)

 

Best of luck with getting the rest.

[debt_mountain]

Well done on your win (nearly)

 

I preempted their offer and the sign the form thing. I called customer relations and he read out the letter, I took a note of the figures they were offering and immediately sent them a fax acepting it as part payment.

 

I never signed anything and never would. they then paid up 3 days later (although I still haven't heard from them directly).

 

good luck.

[debt_mountain]

Got the derfence today...what a pile of crock, also got the AQ so it is now in the post with the £100. I like how the court don't alter any days due to holidays etc, they have given the standard 14 days so I am guessing the bank will miss this one (just like every other stage in the process).

 

They did not pay out for any charges nov 2000, I guess they are trying the only 6 years" claim. But my first letter to them was in April so I can claim back to that date.

 

They also refused to cough up both the monthly account maintenance fees and the interest on the overdraft.

 

didn't pay the compound part of the interest or my loss of savings interest.

 

Also sent the "draft order" with the AQ, see if that stick a rocket up their jacksie. Merry Christmas HBOS.

[debt_mountain]

AQ's were to be in 5th Jan but guess who forgot (HBOS), case with judge and awarning will be sent to them. If that is ignored then the defence could be struck out.

[debt_mountain]

order sent by the judge giving them 1 week to submit it.

 

I am about o write and comment on their defence

 

the last defence says "Any claim as set out in the particulars of claim, which has not been specifically admited, or not admitted is denied." great line just incase they may have missed something important. Surely a judge wouldn't accept this sort of cr4p if they had actually missed something?

[debt_mountain]

BUT they bank may seek their costs of filing a new Defence (and may well get them).

 

Well I had my application hearing and HBOS sent along 15 year old barrister.

 

Hr came over and shook my hand then started the intimidation. "we are going to HAVE you revised POC and the full case struck out as it is a waste of courts time. "Thanks" I said "Whatever" then we were called in.

 

Judge started very confused why I had changed the POC so I explained they had with held 2 years of statements, I had learnt I could claim contractual interest and could add interest and ppi from a loan used to clear the charges based overdraft.

 

The 15 year old just sat and said very little, then the judge asked him to comment and again he read his wanting it struck out, judge discussed the possibility of my success with the authorised and unauthorised interest rates and struck them noth out after listening to my (cag) resonse. He did say I could appeal if I wanted. He then left in the charges beyond the 6 years (like the s32 arguement) and was very interested in the interest and PPI claim and left it in.

 

Then the school kid piped up as the judge was drafting his order and said as I had poorly written my original POC that I must pay todays costs for this hearing. The judge agreed and asked for my view on this.

 

Luckily tgsh2006 had warned me of this so I had my speech ready.....well as I had requested 8 years of statements in my SAR and it took BOS 20 days beyond the legal requirement for the SAr and then told me I was only getting 6 years and only when I pushed the ICO complaint did they then supply the extra 2 years (which was 2 months after the original claim) I then chose to update the POC with all I had learnt, which included what this same judge had explained in a previous case (he like the fact I had learnt from him and smiled).

 

He then looked at the school oy ans said as this is still a small claim and there are clearly outstanding charges in dispute the costs are in case.....in other words boggoff HBOS and pay your own way,

 

Thanks tgsh2006 you save my bacon with that one.

 

I had a scare when I changed my POCs but got away with it. I also got the judge to order them for disclosure,

 

Here is my POC revised thread.

[debt_mountain]

Here is the revised defence they filed. There are a couple of errors 1 is fairly large but not sure if it can be used in any way to have the defence or just that paragraph struck out.

 

I now need some help with arguements against LA s5. I will be doing some searches but anyone who has been through it are welcome to help.

 

They have used the date of raising the action as the start of the 6 year time period. Not Arp 06 when I actually started it. Our friend at DLA Piper ANDREW WILSON HORTON's attendtion to detail is terrible. Might forward it to his boss.

I have also added my revised POC after this so it can be linked back.

I will add a post after this one with my particular questions.

AMENDED DEFENCE

This amended defence is filed without prejudice to the defendant's counterclaim that the claim should be struck out in part or in whole, pursuant to CPR Part 3.4.

1. Paragraph 1 of the Amended Particulars of Claim is admitted.

2. It is admitted that during the period in which the accounts were operated, the defendant debited charges to the accounts. The charges were debited to the accounts in accordance with the terms and conditions of the accounts, which the claimants agreed to accept and by which they are bound.

Under the account conditions, the defendant is entitled to apply charges to the accounts, inter alia, and so far as is relevant to the claim for:

(a) each calendar month when a debit balance on the current account exceeds an authorised limit;

(b) refusing payment instructions issued by the claimant where there are insufficient funds available for withdrawal from a current account (after taking into account any authorised overdraft limit); and

© on payment instructions issued by the claimant where the overdraft limit has already been exceeded, or is exceeded as a result of honouring the payment instruction.

3. Notwithstanding the foregoing, the defendant has, without admission of liability, refunded £xxxx.xx to the account. This sum represents a refund of all charges, together with interest at 8%

In relation to all charges debited to the account, form 14 November 2000 to the date of issue of proceedings. The sums claimed prior to this date are monies claimed for breach of contract, as such are governed by section 5 of the Limitation Act 1980, which provides a limitation period of 6 years from the date of the cause of action arose. It follows that under section 5 the limitation period in respect of each debit, the cause of action expires 6 years after the date of that debit. The claim in this matter was issued on 14 November 2001. Therefore any debit made before 14 November 2001 is outside the 6 year limitation period and accordingly statute barred.

4. In relation to paragraph 4, with regards to the claim for interest, the court has already ordered that any claim in relation to interest, either at 28.8% or 15.9%, be struck out. Accordingly the claimant's claim is limited to statutory interest, payment of which has already been refunded, without admission of liability.

5. In relation to sub-paragraph (i), the claimant's claim, firstly it is noted that the sums claimed are not pleaded within the body of the amended claim form and simply appear in the prayer. It is denied that the claimant is entitled to repayment of the sums claimed. It is averred that the claimants took out the loan of his own free will, together with the payment protection insurance and agreed to pay interest at the rate of 16.7% upon the sums as borrowed. The claimant had the benefit of those monies, and is contractually obliged to repay the principal, together with interest and the payment protection insurance. In addition, it is denied that the claimant even if, which is not admitted, is entitled to repayment of those sums, the claimant is not entitled to interest of 6.7% but interest at 8%.

6. Save as expressly admitted or not admitted, each allegation as set out by the claimant in his amended claim is denied.

Dated 17 April 2007

I believe that the facts stated in this defence are true.

* I am duly authorised by the Defendant to sign this statement

Full name ANDREW WILSON HORTON

My Revised POC

 

Revised Particulars of Claim for xxxxxV Halifax Bank of Scotland xxxxx

Changes highlighted in RED

1. The Claimant has two account xxxxx& xxxxx("the Accounts") with the Defendant which was opened on or around 1 July 1999 .

2. During the period in which the Accounts has been operating the Defendant debited numerous charges from 1 July 1999 to 9 November 2007 for both accounts

in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. 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.

3. An updated list of the charges (6 different sets) applied are attached to these particulars of claim referenced as xxxxxSchedule 1, 2 & 3, xxxxxSchedule 4, 5 & 6

4. The Claimant contends that Interest claimed is such

a) The claimant claims compound interest on the charges and overdraft interest applied thereon to the claimant’s account (“the principal claim”), at the annual rate of 28.8 %. This is the rate currently applied by the defendant to the claimant’s unauthorised use or borrowing of the defendant’s monies, as provided for in the contract.

The claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

The claimant deems the defendant’s principal indebtedness to the claimant to be unauthorised, since it is comprised of charges that are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at 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 dates, the claimant deems the defendant’s charges to the claimant’s account to be indefensible, unenforceable at law, and unauthorised, 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 unauthorised withdrawals from the customer’s account by the bank (the defendant). The interest claimed is therefore deemed to provide an equitable remedy.

b) In the alternative to 4 (a), should the court deem that the claim does not merit the application of the defendant’s unauthorised lending rate, the claimant claims compound interest at the defendant’s authorised borrowing rate of 15.9% per annum, based in the premise that the court finds that the defendant’s withdrawals from the claimant’s account were authorised.

c) In the alternative to 4 (a) and (b), if the court is unable to agree that the claimant is entitled to either of the two contractual rates of interest, on the grounds stated, the claimant avers 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 commercially compounded rates. On these grounds the claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of 15.9 % per annum.

d) In the alternative to 4 (a), (b) and ©, if the court finds that the claimant is not entitled to contractual interest, the claimant claims interest under section 69 of the County Courts Act 1984.

e) Schedules showing interest calculated at the rates quoted at 4 (a), (b & c) and (d) are attached to these particulars of claim, numbered xxxxxSchedule 1, 2 & 3, xxxxxSchedule 4, 5 & 6 respectively.

5. Accordingly the Claimant claims:

a) The return of £ xxxxx.xx taken by the defendant in charges and interest applied on the charges between 1 Jul 1999 and 1 November 2006.

b) Court fees

c) Costs allowed by the court

d) As particularised at 4 (a), contractual interest at an annual rate of 28.8 % compounded daily from the date of each transaction to the sate of this revised particulars of claim 15 February 2007, of £xxxx.40 plus the charges of £xxxx.49 giving a total of £xxxxx.89 less the amount paid so far by the defendant of £xxxx.60 leaving an outstanding amount of £xxxx.29

e) Further contractual interest at 28.8 % compounded daily from 15th February 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing, or if and when the defendant requests an earlier settlement. This exact figure will be supplied to the defendant as soon as a hearing date is set and also brought to the hearing.

f) In the alternative to 5 (d) and (e), and as particularised at 4 (b) or ©, contractual interest at an annual rate of 15.9 % compounded daily from the date of each transaction to 15 February 2007 of £xxxx.35 plus the charges of £xxxx.49 giving a total of £xx,xxx.84 less the amount paid so far by the defendant of £xxxx.60 leaving an outstanding amount of £xxxx.24 .

g) Further contractual interest at 15.9 % compounded daily from 15 February 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing.

h) In the alternative to 5 (d) (e) (f) and (g), and as particularised at 4 (d), interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 1 July 1999 to 15 February 2007 of £xxxx.45 plus the charges of £xxxx.49 giving a total of £xxxx.64 less the amount paid so far by the defendant of £xxxx.60 leaving an outstanding amount of £xxxx.34 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 0.0219% per day.

i)Return of the interest £xxx.84 and payment protection insurance £xxx.48 totalling £xxxx.32 plus interest on this amount at the contractual rate of 16.7% a year from the date it was removed 5 July 2001 totalling £xxxx.52. this gives a total of £xxxx.04 on the £xxxxloan taken out on the “advice” of the bank for the sole purpose of clearing the overdraft which if the unlawful charges had not been removed from my account the loan would never have been required. The loan application and statements showing the loan details will be included in the evidence package required for the hearing.

j) Further contractual interest at 16.7 % compounded daily from 15 February 2007 up to the date of judgement or earlier payment. As the interest is compounding and the claimant is unable to predict when the claim will be heard or settled, the claimant is unable to specify a static daily interest figure, but will provide an updated settlement figure in respect of the interest at any hearing.

Statement of Truth

I believe that the facts stated in these particulars of claim are true.

Signed (Claimant) 17th February 2007

Full name

[debt_mountain]

My Questions are:-

 

• Can they be so general with the reference to CPR part 3.4, I have looked at that section and it is fairly detailed. Do they not have to specify exactly which part(s) of the statement of case they wish to have struck (striked). It won't be struck out without the hearing in early June taking place .
  
• response in section 1 and 2 ok standard bumph.
  
• Section 3 para 2 mentions the LA section 5. I need help with this. Can someone point me to some other threads to rean. I am starting to go through taylormandy and Wilkins vs Halifax
  
• Section 3 para 2 has a couple of large errors in the limitation dates and I want to know if I can have this struck out as it is totally incorrect, although the wording makes sense to me. They have stated the case was raised in the court in 2001 when it was actually 2006 and therefore any debit before 2001 in barred when in their argument it should says 2000.
  
• I have also just checked and they are saying everything before 14 Nov isbarred but in the summary of what they have returned so far they have paid out 3 charges dated 2 Nov. Guess I will be using that info in my response to their defence.
  
• section 4 ok. Judge kicked out my CI arguments (second time he has done this now).
  
• Section 5
  • They say ”In relation to sub-paragraph (i), the claimant's claim, firstly it is noted that the sums claimed are not pleaded within the body of the amended claim form and simply appear in the prayer.”. but in point a) The return of £ xxxxx.xx taken by the defendant in charges and interest applied on the charges between 1 Jul 1999 and 1 November 2006.

• • they have made a minor typo by saying the interest rate is 6.7% when they should have said 16.7% but not sure if I can play on that? But more importantly they have not addressed all

[TUTTSI]

Do you know of anyone on the Halifax threads who has claimed back more than 6 years.

thanks

DS