Cank vs Halifax

[cankster]

Morning all,

 

Can I start off by saying what a top site, love to see anyone banding together to beat the big boys.

 

I incurred over 4K of charges between jan 1998 & Jan 2005 when my Halifax account was closed.

 

I have contacted Halifax using some of the numbers given here and as my account details are archived they are sending me full statements for these dates.

 

I also had 2 loan accounts with Halifax over the same time period and they are also sending these details.

 

Couple of questions if anyone is feeling kind -

 

1, My account was closd in January 2005 due to bankruptcy i have been discharged since January 2006. Will any monies I claim for go back to the official receiver or will the bankruptcy effect the claim?

 

2, Can I claim for charges made on the loan accounts?

 

Thanks in advance for all your help.

 

Regards

 

D.C

[mahala]

I don't know about the bankruptcy issue, but you can certainly claim on the loan accounts.

 

Good luck!

[mechs]

Morning all,

 

Can I start off by saying what a top site, love to see anyone banding together to beat the big boys.

 

I incurred over 4K of charges between jan 1998 & Jan 2005 when my Halifax account was closed.

 

I have contacted Halifax using some of the numbers given here and as my account details are archived they are sending me full statements for these dates.

D.C

 

 

Did you phone them asking for the statements? if you did dont hold your breath whilst waiting for them, the chances of you recieving them are zilch.

 

Far better to use the DPA request form (click on DPA) and enclose the ten pounds fee and then wait for up to 40 days for the reply ......in the meantime read the FAQs and others threads it will give you a lot of insight

 

I hope I have been of some help and the best of luck though you wont need it if you follow the suggested route, dont skip on it, its said for a reason ....to help you get your money back

[cankster]

Yes your right I just called them and they promised to send the details straight away. I will give it till Tuesday if they Aint Come I'll get the DPA filled out and send special delivery.

 

Ta for all your help.

[mechs]

Trust me they wont be there by tuesday

[cankster]

Well surprise surprise it appears that they have not arrived.

 

I have just completed my DPA request could anyone take time out to answer a couple of querys please?

 

1, At present I have no bank account, is a cheque from the gitlfriend sufficient to pay the DPA or am I better off sending them cash or PO?

 

2, I also had loan accounts with the Halifax, do I need to provide the account numbers for these accounts as I do not remember them. Would it be acceptable to just ask for all the details regarding my loan accounts and leave them to find the rest of the info. I have supplied Acc No & Sort code for my old current account so they should be able to sort the info from that?

 

3, I was going to DPA my old mortgage company but I do not have my old account number. Is this info essential?

 

Got loads of time now to get my teeth into this as just came out of hospital last night so got nowt else to do.

Many thanks to all you giant killers.

[cankster]

Posted some questions this morning at an unearthly hour, could anyone have a quick peek please as i'm about to send the DPA requests off.

 

Many thanks

[LondonPam]

It doesn't matter who the cheque is from, it should be fine from your g/f.

I didn't know my account number for one of my accounts but just told them name, address where account was and date of birth. They found it from that information.

Good luck.

[cankster]

Hi all,

 

Just received standard letter from halifax. saying they do not have to provide manual handling info, statements with your shortly blah, blah, blah.

 

The ball is rolling

 

Incidently in a bit of a quandry with me other claim heres a link to thread if anyones feeling clever.

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/13607-cank-kensington-mortgage-co.html

 

Many thanks all.

[cankster]

Right,

 

Now we are getting into this. Received my statements on Saturday & between 2000 & 2005 when the account was closed they have taken me for £1560!!!.

 

I also managed to get statements between 1995 when the account opened and 1999 - Have totalled these up and the come to 886 pounds in fees.

 

Question now is do I go for the lot back or play it safe and just get the last 6 years worth???

 

Just wondering if anyone has been successful in getting their cash back after 6 years, and as £886 pounds is such a small amount whether Halifax will just pay up rather than having to represent in court?

 

Any suggestions clever peeps.

 

thx

[cankster]

any idea???

 

Please xxx

[mechs]

or play it safe and just get the last 6 years worth???

 

At this moment in time I would suggest that you stick to the last 6 years

 

You could take a look at the thread: Do you have charges going back more than 6 years started by BankFodder

[cankster]

Right folks bout time I updated my thread,

 

1st a quick timeline of the show so far.

 

1. 1st letter was sent - no reply.

2. 2ns letter sent - offer of 410 received, offer accepted as part payment, halifax said no to that so we proceeded.

3. N1 filed with Bristol CC in person for £2402 (£3486 with interest at 8%). This was for charges between 1998 & 2005 thus conflicting with the halifax's interpretation of the limitation act.

4. I then became aware that I could claim the contractual rate of interest so i filed an ammendment to the claim using form N244 and sent a letter to the halifax to advise them. Copy of letter is attached 2nd portion of letter is a cut and paste from the N244, this was on the 22nd August.

 

Copy of letter in case anyone else want to amend and use -

 

Dear Sir/Madam,

Myself – v – Halifax plc

Claim No 6BS08547

Roll No XXXXXXXX

I have received your letter of 18th August 2006 & also your acknowledgement of service which you forwarded to Bristol County Court.

I am prepared to accept your very kind offer or £2167.01 as part payment only and I will be continuing with my claim until the full amount misappropriated by yourselves has been returned.

With regards to your request for evidence of my entitlement to the further £1319.61 to which I refer, this information is set out on the schedule of charges sent to yourselves. However I do have the original Bank statements which are available if you have mislaid your copies.

If however you are alluding to the Statute of limitations when you are debating my entitlement to more than six years of claims I would advise that I interpret the Statute as follows –

The Limitation Act 1980 section 32(1) states that:

.... where in the case of any action for which a period of limitation is prescribed by this Act, either-

• (a) the action is based upon the fraud of the defendant; or
  
• (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
  
• (c) the action is for relief from the consequences of a mistake;

The period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

My interpretation is that the limitation period runs from when I found out that the charges are unfair (as per the OFT pronouncement on 5th April 2006), and that the act is a forward looking limitation and not retro-active.

I.e. I can go back as far as I can prove the charges, as long as I act upon what I find out & calculate now in the next 6 years.

A very recent case law on this subject is Haward & Ors v. Fawcetts & Ors [2006] UKHL 9 (1 March 2006).

Since my original claim I now understand that the principle of mutuality, or reciprocity, applies to the banking contract I entered into with the Halifax PLC. In light of this new information I have this morning filed an amendment form N244, and applied to amend this claim with Bristol county Court.

The information contained within the amendment is as follows –

Since my original claim I now understand that the principle of mutuality, or reciprocity, applies to the banking contract I entered into with the Halifax PLC.

I also claim interest at a rate of 29.8%, from the date of each transaction. The claimant further claims interest at the same rate up to the date of judgment or earlier payment.

The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants unauthorised overdraft interest rate that would be applied under the terms of the above mentioned account. I believe this rate to be fair as the money was misappropriated by the defendant without permission of the Claimant.

Should the court find that this interest rate is not applicable, then as a 1st alternative I wish to claim interest at the banks standard overdraft interest rate of 16.9%.

Should the court find that either of these interest rates are not applicable, then as an alternative the Claimant wishes to claim interest pursuant to section 69 County Courts Act.

I enclose amended schedules of charges for your information.

Yours faithfully,

Continued on next post.

 

 

 

[cankster]

1. An order was made this Thursday by the district Judge in Bristol CC. He basically asked me to resubmit the origional N1 with the information I require removing deleted and the new information added. This I did on Thursday afternoon.

 

2. Halifax advised me by phone on thursday afternoon that they would be filing a holding defence as their time had run out and they would be waiting until the ammendment was agrred by the Judge. Thery would then contact me with an offer.

 

3. This morning I received a copy of the halifax's defence and an allocation questionaire which must be submitted by 2nd October. Most of the defence is easy enough to understand but i would like some help with the following -

 

Extract from defence claim -

 

7. The Defendant contends that the Claimant has no reasonable grounds for proceeding with his claim, and the Defendant respectfully requests that the court be minded to make an order pursuant to to Rule 3.1(2)(m) of the civil procedure rules.

 

Any advice on this or any general advice.

 

Many thanks.

[cankster]

After further delving have found the following -

 

The court’s general powers of management 3.1 (1)The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)Except where these Rules provide otherwise, the court may –

(a)extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b)adjourn or bring forward a hearing;

©require a party or a party’s legal representative to attend the court;

(d)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(e)direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f)stay (GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g)consolidate proceedings;

(h)try two or more claims on the same occasion;

(i)direct a separate trial of any issue;

(j)decide the order in which issues are to be tried;

(k)exclude an issue from consideration;

(l)dismiss or give judgment on a claim after a decision on a preliminary issue;

(ll)order any party to file and serve an estimate of costs;

(m)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

 

I assume from this that they are attempting to have the case struck out. Any comments or advice?

[cankster]

bump

[Glenn UK]

Cankster

 

My first thoughts are its a ploy to try to get the judge to strike but on its own i dont see it has any force behind it, I would suggest that for the defendant to repudiate your claim they would have to present a reason for this.

 

Simply saying i dont htink you can do this is good enough.

 

So is there any other clauses associted with this that indicate why they dont think you have a claim?

 

JMHO

 

Glenn

[cankster]

Finally the Judge has agreed the ammendment.

 

So am claiming both the contractual rate and 10 yrs worth of charges, with the judges blessing.

 

This should be interesting.

[cankster]

Another update,

 

The halifax had till 4pm today to file an ammended defence. They did it with 2 hrs to spare

 

Have already filed my allocation questionaire so it looks like were having a court date.

 

Gulp

[cankster]

here is copy of there ammended defence. Interesting one this as it id their defence against the limitation act and contractual charges. I woul love any comments or ways to overturn there claims.

 

Between:

CANKSTER

Claimant

and

HALIFAX PLC

Defendant

AMENDED DEFENCE

 

1. The Defendant is a Bank. The Claimant has a current account with the Defendant, having roll number XXXXXXXXX("the Current Account").

2. The Claimant appears to be claiming bank charges incurred over the last 9 years.

3. The Claimant has provided particulars stating that £3486.62 of his claim relates to bank charges incurred on his Current Account. These charges were debited to the Current Account in accordance with the terms and conditions of the Current Account ("the Account Conditions"), which the Claimant agreed to accept and by which he is bound. Under the Account Conditions, the Defendant is entitled to apply charges to the Current Account, inter alia and so far as is relevant to this claim, for:

(a) each calendar month when a debit balance on the Current Account exceeds any authorised overdraft limit;

(b) refusing to honour payment instructions issued by the Claimant where there are insufficient funds available for withdrawal from the Current Account (after taking into consideration any authorised overdraft limit);

and

© honouring 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.

4. Notwithstanding the foregoing, the Defendant has, without admission of liability refunded £2167.01 to the Current Account. This sum represents all the bank charges that the Claimant has incurred in the last 6 years being £1546.00, together with £501.01 interest pursuant to section 69 of the County Courts Act, and £120 Court fee.

5. The remainder of the Claimant's claim relates to charges incurred to the Current Account more than 6 years ago. It is denied that the Claimant is entitled to recover these sums as the Particulars of Claim state that the Claimant's claim is based on contract and as such section 5 of the Limitation Act 1980 applies which states that an action founded on simple contract cannot be brought after the expiration of 6 years from the date on which the cause of action accrued.

6. The Claimant is also claiming interest at a rate of 29.8% being the unauthorised overdraft rate, or alternatively interest at 16.9% being the standard overdraft interest rate based on the principle of mutuality and reciprocity. It is denied that the principle of mutuality and reciprocity applies and it is further denied that the Defendant misappropriated the Claimant's money. The Defendant has already paid the Claimant interest as pleaded in paragraph 4 above.

7. It is therefore specifically denied that the Claimant is entitled to claim interest at either rate.

8. The Defendant denies that it is liable to the Claimant for the sum of £1319.61 in respect of the balance of his claim or for any other sum, and on the basis of matters pleaded above, the Defendant contends that the Claimant has no reasonable grounds for proceeding with his claim, and the Defendant respectfully requests that the Court be minded to make an order pursuant to Rule 3.1(2)(m) of the Civil Procedure Rules.

DATED this 9th day of October 2006

The Defendant believes that the facts stated in this Defence are true.

[sarahpp]

Fingers crossed for you

 

I have already had a claim settled with Halifax at the statutory rate but, intend to claim for my partner at contractual so, I will be watching your thread with interest.

 

Good Luck

 

Sarah

[Glenn UK]

LOL thats not a defence Id apply to the court to have it struck out as having no chance of success.

 

8. The Defendant denies that it is liable to the Claimant for the sum of £1319.61 in respect of the balance of his claim or for any other sum, and on the basis of matters pleaded above, the Defendant contends that the Claimant has no reasonable grounds for proceeding with his claim, and the Defendant respectfully requests that the Court be minded to make an order pursuant to Rule 3.1(2)(m) of the Civil Procedure Rules.

This however is more important they are asking for your case to be struck out, so I'm not sure what the best response is we should find out.

JMHO

 

Glenn

[zootscoot]

Interesting one this.

 

It looks like they are relying on the judge to strike it out on the grounds that there is no case to answer. Although as you have raised s.32(1) (b) & © there is certainly and arguable point. Its likely that the judge will allow it to proceed. It will also be interesting to see how far Halifax proceed with their defence as generally they do not defend cases.

 

A relevant case on s.32(1) ©:

 

House of Lords - Kleinwort Benson LTD. v. Lincoln City Council

Kleinwort Benson LTD. v. Mayor etc. of the London Borough of Southwark and Others

Kleinwort Benson LTD. v. Birmingham City Council

Kleinwort Benson LTD. v. Mayor etc. of the London Borough of Kensington and Chelsea and Others

(On Appeal from the Queens Bench Division of the High Courts of Justice)

 

Best of luck with this one

 

Zoot

[moses]

oh er!!!:-|

 

unfortunatley I'm an absolute thicko with all this jargon but I'm well impressed with your thread & wait with baited breath for the joyous outcome on your behalf

 

 

 

lots of luck;)

[Glenn UK]

Zoot

 

I'm not certain from the post that the POC contains any reference to Sec 32.1.b or c. Perhaps the original poster can confirm this?

 

If the POC doesn't does the claimant need to advise the court they are relying in part on Sec 32?

 

Glenn