Send the SAR to the address you have listed - thats fine and where I wrote to get my brother's statements. Took about 10 days to receive them.

LondonPam is quite right - all you need to do is make sure that any financial association on your credit file is removed. That will be the end of any damage to your credit rating. There are easy to follow instructions about how to do this on the equifax website as far as I recall. Its a lot easier than dealing with the lender in relation to someone else's debt!! If the bailiffs call tell them to sod off.

Best of luck with it. It is quite amazing as you say that once you tot it all up it comes to a lot of money. I cleared all my debts of about £6000 (now only have my mortgage) with the proceeds of bank charge claims. Oh the joy of not having those round my neck. They all related to problems 3 or 4 years ago and the silence of the telephone nowadays is golden I can assure you I wish you success

I agree with Stone - pay it off. In the letter you send them enclosing the cheque say you are paying without prejudice to your right, should you choose, to challenge the charges that have been applied to the account. No problem with you paying to avoid the default and then pursuing the charges.

Nice one - well done.

You will have to repay the money. If you dont mind me asking why did you spend it when you knew it wasnt yours? I'm sure you can ask the bank to take instalment payments but they don't have to agree.

You now say "if it is a mistake" Do you now believe that it isn't? If it is, and you appear to have confirmed this in your earlier post, then if you are prepared to repay it if they ask you, why not just give it back? If you keep it for too long or spend it that will constitute theft of the money.

nope. they have no right of entry. Never let them in and make sure your windows are all shut when you go out. Once they are in they are allowed to break in next time they come.

Repay it. You know its a mistake and you know its not your money. At some point the bank will notice the error and ask you for it back. Sending back the second settlement letter when you knew that your claim had already been paid in full rather than pointing out the bank's error is serious stuff. If you keep it or even had the intention of doing so when you returned the second settlement acceptance that might be sufficient to establish that you have committed an offence under the Theft Act. I would send the money back now and tell them that you made an error.

JAMORGAN Are you going to appeal?

sorry nevos don't follow you - can you expand on that?

Hi Red1 - if Jamorgan wants me to I'll try and get something done for her this weekend. The 30k figure quoted above is a bit much - I dont think in the first instance that the matter goes anywhere other then the DJ who made the decision. If he agrees then the case should proceed in the county court initially (assuming it was a DJ - if it was a CJ then the matter goes back to him - also in the County Court) so far as I understand it. However, having said this if Jamorgan were to win her appeal and then the hearing of her claim the chances of an appeal against that decision by the lender is pretty high - but lets go one step at a time.

Really feel for you and I’m sure the decision came as a great shock I’ve read the witness statements and skeleton argument you have posted. Of course I haven’t seen your claim or the defence and my comments are based on what I have read in this thread. They are really just my immediate thoughts on your case. Don’t forget that you are appealing (if you do) against a decision to strike out your claim. All you have to do is persuade the judge that there is a legal basis for your claim that should be heard – you do not have to “win” at this stage. Starting with the obvious stuff. 1. The lender’s witness statement admits that the erc sum is in effect an arbitrary figure. 2. The lender’s witness statement acknowledges that the reason for the erc is to compensate the lender. What does that compensation comprise of? The witness statement says loss to the lender of profit on mortgage repayments. Thus the compensation is expressed to be in relation to the non payment of future instalments (and therefore a profit element for the lender) under the mortgage. This is in all respects expressed in terms as a liquidated damages clause save for the fact that the lender gives a contractual right to the consumer in the contract to redeem early. In effect and in totality the contract behaves as if there is a liquidated damages clause for a “breach” but also provides that the circumstances giving rise to the payment of those “damages” is not a breach. Whether a payment required under a clause can be a penalty on breach is decided looking at the time the contract was made and not the time of breach (Dunlop Pneumatic Tyre Company) Note particularly the dicta of Colman J in Lordsvale Finance Plc v. Bank of Zambia [1996] QB He says: "whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred." (emphasis added). But is the main function of the erc to deter you from breaching the contract when the contract actually provides a contractual right to redeem early? So if there is no breach the contract provides that the lender can be compensated in circumstances where the borrower is in full compliance with the other terms of the contract? Is the requirement of breach a deciding factor or can a clause be a penalty even if on the face of the contract there is no breach? The silver thread going through the whole of the rules on penalty clauses is that – the rules will not apply unless there is a breach of contract. The perennial problem is that of early termination in accordance with the contract. Many bank charges sites quote Bridge –v- Campbell as a case supporting the recovery of charges and that is fine for bank charges where there is a breach of the contract. It does not sit well with erc cases. In that case the court recognised the inequality of treatment of a borrower where he was a) in breach and had to make a payment under the contract and b) terminated the contract early and had to make a payment under the contract. In the first case the payment demanded could be subjected to the rules on penalties. In the latter it could not. So a person in breach was in a more favourable position than a person who complied with the contract in terms of the scrutiny of the payment they were required to make. In the context of consumer protection and penalty case law is it equitable or fair for the lender to frame the contract in this way? This problem has exercised the judiciary in cases from Bridge –v- Campbell onwards and judges have said that the law should be changed so that an oppressive or unreasonable penalty clause should not escape judicial scrutiny as a penalty just because it is framed in such a way so as not to arise on a breach of contract. In effect the erc clause is a penalty clause drafted so as to avoid a breach and the application of the rules on penalties. Thus far case law has made clear that although this situation is unsatisfactory, the law as it stands will only apply the rules on penalties where there has been a breach. However, under the special considerations that apply to consumer contracts it can be suggested that this approach, in the context of consumer contracts, can no longer be justified. Both the Law Commissions of England and Wales (Penalty Clauses 1975 paras 17-26) and Scotland (Scottish Law Commission Discussion Paper No. 103 on Penalty Clauses 1997 – para 4.1 have reached the conclusion that the rules on penalties should apply outside the restriction of breach of contract. In your witness statement paragraphs 9 and 10 talking about the erc clause effectively being a penalty probably did not persuade partly because they do not expand on the above. But the main reason will be that despite the dissatisfaction voiced by judges for 40 years and the Law Commission recommendations the law has to be changed by legislation and so far has not been (except for any effect of consumer regulations). I think this is undoubtedly the reason why the lender won on its strike out application and was the root cause of the judge being persuaded that the usual law must apply – i.e. no breach, no penalty. As to consumer protection issues - the consumer has no choice in the imposition of these terms as they are on the lender’s standard conditions and not open to negotiation – nor is the nature of the payment, the basis for it and the method of its calculation by reference to any alleged loss and a proper or any pre-estimate made in any way clear to the consumer at the time the contract is entered into. What about accelerated payment of that loss as would occur where an erc was paid? What are the actual costs to the lender? Is any information given to the consumer to inform him of the method of calculation and the basis of the costs/compensation and any discount for accelerated receipt of losses? Answer – No. It cannot be argued with any force in sub-prime lending that the consumer has the choice not to accept the mortgage conditions and go elsewhere. All sub-prime and indeed high street lenders in these circumstances operate the same policy. Under UTCCR 1999 can we rely on regulation 7? It is mentioned in your witness statement (para 10) but the mention is brief and the point is not expanded on. The requirement is that any term of the contract is expressed in plain intelligible terms. What is the purpose of this requirement – just that the consumer understands the actual words used, or that the basis and nature of the term is made clear? If the latter then we should be arguing that as even the lender admits that the term is to provide compensation and contends that the term is a liquidated damages clause that the basis of that compensation should be explained. Compensation for what? How calculated? We can say that without that information the term is not clear and intelligible – it is merely an arbitrary sum payable on termination. Note that the OFT has published article(s) stating that it is possible to calculate a proper estimate of losses in respect of erc’s and I think this is linked to above in this thread. If it is compensatory in nature then it is to provide “damages” and they must be either liquidated, i.e. ascertained at the time of the making of the contract or they may be a penalty. If this argument applies then the term is arguably not clear and intelligible and the term should be interpreted if possible in favour of the consumer. The interpretation in favour of the consumer must be that the clause provides for compensation which is arbitrary, not ascertained or justified and which is therefore a penalty. This argument pits the weight of the consumer protection regulations against the established common law that there must be a breach for the rules on penalties to apply. In not making the term clear and intelligible the lender is effectively inserting a possible penalty clause in the contract but avoiding the application of the rules on penalties by avoiding the circumstances giving rise to payment being a breach. Who knows the outcome of a submission like that? Is such conduct fair in a consumer contract? If not can we bring in Regulation 5? Your appeal should certainly suggest so. One can even despite the above observations understand a judge accepting that there must be a breach for the rules on penalties to apply, although I feel that this pays no attention to the consumer protection angle and at best you can ask the judge in your written appeal to agree that there is a point of law to argue on the interaction of these two branches of the law. But that just means that you are asking to be a test case. My final thought has not been discussed at all so far. As there is an equity of redemption (and I don’t mean an equitable right to redeem early – there is none – but the full equitable interest - namely the proprietary interest in land in its own right of which the right to redeem is merely a part) is the payment not a clog on that right? This would be on the basis that the term in the mortgage contract was unconscionable or oppressive. The bar is high and the term must be excessive but looking at the nature of the term, the way it is drafted to avoid the application of the rules on penalties, and the lack of information given to the consumer, one can at least argue that there is a point of law to be argued that should be heard that the erc is a clog on the equity of redemption and therefore void. I can’t think of anything else that might be of help at the moment and its getting late – already been thinking about this for a good few hours now! - but I hope others will add to this and give you some hope if you wish to appeal the decision to strike out. With all my best wishes ;-)

I phoned them up after submitting the AQ to discuss settlement and they agreed settlement with me there and then on the telephone - nothing ventured.......

Just read the FAQs - might take you a couple of days to get acquainted with the whole thing but after that you'll be off on the road to getting that money back

Ok Glen - didnt mean to be vitriolic and I withdraw the remark - was a bit worse for wear when I posted. But it is clearly sensible where the bank have considered your request for repayment of the charges and given a no response and stated that this is final and they will not further correspond on the matter that someone doesnt waste their time, paper and a further 14 days on another letter asking for repayment, stating that the charges are unlawful and threatening to issue proceedings to recover them. In my experience no judge would criticise a litigant in person for pursuing the claim after the final response from the bank. The bank aren't seriously going to make an issue of it by writing to the court to complain that after they'd given the claimant a final response he didn't then write to them again. If I remember rightly the initial letter mentions that a letter before action will follow if no repayment is forthcoming and that proceedings will be issued thereafter - so why repeat this when there is clearly absolutely no point in doing so?

I see absolutley no problem with claimants now pointing out on their allocation questionnaires that this case management order is being made in other court(s) and respectfully requesting in the AQ that the court consider whether the defence is an abuse of process and asking the court to make a similar order at AQ stage. This method should definitely be stickied by one of the mods.

Defendant can say you've been unreasonable? With what result? If you seriously think the court will give a monkey's about whether an LBa was sent in the way you suggest it just shows that you know diddley about the way things work in the court system in the real world.

go for it and best of luck

I agree. The Part 18 requests should be served in the case of a litigant in person in a seperate letter explaining what it is and why it has been served. The fact that bank's lawyes are serving them along with the defence with no explanation just shows how the bank's lawyers are not complying with their duties when dealing with a litigant in person.

No you dont need to do an LBA - if you have written to the bank suggesting that their charges are unlawful and asking for repayment that will suffice. They have refuted your suggestions and told you that this is their final response. An further letter saying you will sue if they dont pay is pointless now.

Doesn't the spreadsheet in the library work this out automatically? And then apply the 8% to your total claim for charges from the date you issue the proceedings to the date of settlement - so when the bank offer to settle calculate the interest to that date and include it in the amount you will accept in setlement.

All sounds fine so far. Use the N1 to make your claim and if you want to get the Particulars of Claim right first time take the one from my old thread below (remembering to quote your own bank's terms and conditions) - and best of luck http://www.consumeractiongroup.co.uk/forum/general/15172-reply-stock-defence-18-a.html

Dont worry about the delay my friend. Just calculate the amount owing to you today and claim for that. You don't have to do another LBA. The reason for these is so that you have raised the issue and the amount is essentially irrelevant. The bank have told you to sod off - final answer. Your next step is to issue the claim for the amount you are owed - and that should be up to date at the date that you issue the claim. And best of luck

Yes - dont worry about it - just submit the claim for the correct amount and GL