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Everything posted by PhantomReclaimer

  1. Quick question. Has anyone ever had legal action brought against them by a collections agency to recover a debt? I ask because it seems quite rare.
  2. Probably. It's not the charge I'm querying with them though - it's the actual service its self.
  3. Well, I'm back after quite a while of being busy, ill, etc. Don't know if this has been discussed at all, apologies if this is old ground. Me and Mrs PR have a joint account with Nat West. Over the past few weeks we'd had one or two charges for unpaid DD's - my fault mostly as I forgot to pay in, we don't keep a lot in the account (it's just for paying the household bills), and once when her pay didn't go in on time and a payment was rejected. Anyway, I had a read up on their T's & C's to see what it said about the nature of the charges. I knew they had changed their tune as to what the charge acually was so as to describe it as being a service they were graciously providing to you, rather than a charge for not doing anything. Anyway, this is the relevant clause; "6.3 Unarranged overdrafts and unpaid items 6.3.1 If you issue instructions for a withdrawal or other payment which would result in: (a) your account becoming overdrawn, or further overdrawn, without prior arrangement; or (b) your overdraft limit being exceeded, we will treat your instructions as an informal request for an unarranged overdraft. General Conditions 6.3.2 to 6.3.4 describe how we process your request and the charges we make when we do so. 6.3.2 If we decide we are willing to accept your request, we will make a charge known as a Paid Referral Fee. 6.3.3 If we decide we are not willing to accept your request, but nonetheless accept it because we find that you have guaranteed payment by the use of a cheque guarantee card or debit card, we will make a charge known as a Guaranteed Card Payment Fee. 6.3.4 If we reject your request, we will make a charge known as an Unpaid Item Fee. 6.3.5 Where you have an unarranged overdraft, in addition to any charge imposed under General Conditions 6.3.2 to 6.3.4, we will: (a) apply a monthly charge known as a Maintenance Charge; and (b) charge interest (known as debit interest) on the unarranged overdraft at a rate which is higher than the rate we charge on arranged overdrafts. 6.3.6 You will find details of the interest and charges mentioned in this General Condition 6.3 in Personal and Private Banking – A Guide to Fees and Interest. Clearly from this the "service" they are providing in respect of the charge being made is one of deciding whether to honour the instruction for payment or not. However, at no point is the customer made aware of how this decision is arrived at, what criteria is applied in the decision making process, who makes it, whether it can be appealed and when - exactly - it is made after the instruction is recieved by the bank. It is clearly unreasonable to charge for a service of which the customer has no working knowledge, is unable to assess the nature and quality of and which is not open to scrutiny or challenge by the customer. In addition, the bank has offered no evidence that they are even performing the service - although, I'm sure they wouldn't stoop quite that low! Anyway, I've email NatWest about this and will post what they say.
  4. If the the police had behaved reasonably, even though they were wrong, you don't have any cause of action, I wouldn't have thought. It could be worth finding out why they believed it was reasonable to stop you though. If it was because of duff information given to them from someone else, such as store staff, then you may have a shot at a defamation action against whomever supplied that information. P.
  5. You make some good points here. I have been of the belief for a long while that there is far, far too much cheap credit about. Not only that, but most of it isn't being used to fund sensible capital purchases like property, or investments like businessess, but rather in material goods such as household electronics, new furniture, cars, hobbys and intengibles such as holidays and nights on the p***. All are things which become basically worthless the minute you buy them leaving you with nothing but a big interest bill. Unlitimately, it's the individual who's at fault for running up the debt. Anyone earning an average wage can live perfectly well on it these days and dosen't need to borrow anything except for large purchases like a house. However, I do believe there is an element of responsibility that the banks must shoulder. It is simply irresponsible to advance someone more credit than they can realistically service. When you see the horror stories on such programmes as "your money or your life", and such like, you wonder how it can be that banks can allow people of modest means to run up £30K on plastic! I have to disagree that almost everything we buy from China or India is substandard. Lots of things, especially from China, are very good quality. Big names like Apple who have their stuff made in China have a lot invested in their brand and don't wan't to turn out crap. Admittedly though, a lot of it is total rubbish - the recent toy and medicine recalls being cases in point. Howver, I think we see less of the rubbish here due to very stringent EU safety and quality standards and better consumer protection in general than most other places. P.
  6. I don't think it's quite correct to say that Governments through the years were responsible for destroying certain industries. Heavy industry, such as steel, coal and ship building, for instance, are simply not viable in this Country any more because Indian and the Far Eastern producers are willing to do the same job far cheaper. Also, on a pragmatic level - why do we want those industries anyway? They are dangerous, dirty and polluting - visually as well as environmentally - and just unpleasant generally. We are well rid of most of them, quite frankly. P.
  7. Northern Rock haven't been "bailed out", as such. They have been given a loan by the BoE and at a punitive rate of interest at that. I don't claim to be a finance industry expert but this seems to be a problem entirely - or at least mostly - confined to Northern Rock and the way they run their business. They, apparently, re-finance their lending every few months but can't now that all the banks have stopped lending to one another. Banks aren't going to permenantly stop lending to one another so as soon as this goes back to normal so will the situation at NR. It should be noted that although they have posted a profits warning, they are still saying they are going to make £500M this year. Northern Rock are not in trouble and there is no way the bank of England are going to let them go down the pan even if they were. It's amusing to see all the sheep queing out the doors to get their cash out - talk about hysteria. Mrs Phantom works at a press agency which had snappers outside NR branches yesterday and one woman showed the photographer a bag stuffed full of notes to the tune of £150K that she'd just withdrawn. I mean, how unbelievably f****in stupid can people get? The chances of having it stolen, lost, destroyed, etc, are thousands of times greater than loosing it through NR going bust! I really wish I had some spare cash because I'd be buying a good amount of NR shares right now. P.
  8. No I think you are missing the point. It's irrelevant what policies the DVLA have relating to the provision of information to third parties - you can't automatically justify the release of information as being proper simply because internal DVLA policy says it is. The Law is perfectly clear on this. DVLA can ONLY release information if the person requesting it has "reasonable cause" to have it. It is incumbant upon the DVLA to satisfy its self that each applicant does indeed have reasonable cause and if it fails to make proper enquiries as to the use that the information will be put to, and the information subsequently finds its way into the hands of someone who does not have reasonable cause, then DVLA has broken the law. Like I said before. The issue of contractual penalties is one of settled case law streatching back the best part of a century and has been before the HoL on more than one occasion. If a parking company or individual says that the information they are requesting is to pursue a purported fine, penalty or similar charge resulting from a contract involving the use of a motor vehicle then DVLA should refuse access to the information on the grounds that the applicant has not shown reasonable cause for its release due to the charge in question being unlawful and unenforcible at Law. If they are aggrieved at this decision then the proper remedy should be an appeal to a Court. Issues such as the provision of signage, land ownership and suchlike are irrelevant. The charge at the heart of the access request is unenforcible at Law and all the sings in the World cannot make it otherwise. The DVLA know this fine well yet persist in illegally providing information to parking companies. P.
  9. Well, obviously you are able to define "reasonable" and use it in it's proper context in two examples so why can't a DVLA lawyer? As for them being arbiters of a civil action you again have just suggested that they should be by considering signage, ownership of road, etc. You are correct in that DVLA have no discretion in the matter of giving out information. They are bound by the Law. If the person requesting it cannot demonstrate "reasonable cause" then they MUST NOT release the information. DVLA should NOT be releasing information purely because the applicant says he has reasonable cause. He should have to show that he does. This is not a complicated call for DVLA to make. The word "reasonable" is easily understood and I fail to see how anyone could consider the pursuit of an unlawful and hence, unenforcible, debt to be anything other than utterly unreasonable. All DVLA needs to do is to ask whether the person requesting the information is doing so in relation to any contractual dispute involving the use of a motor vehicle on private land. If they say they are then they should investigate further to establish whether what is being pursued is likely to be an unlawfully levied contractual penalty such as for overstaying, failing to pay, etc. If it does appear to be a penalty, or other unenforcible sum, then they should refuse to provide the information. If the person requesting the information is aggreived at the decision not to release the information then they can always appeal. Also, I think a change in the law is required here. I think that in most cases if a request for your information is made to DVLA then you should be informed of it and the reason why it is being requested and be given an opportunity to object in same cases. P.
  10. I don't think the term "reasonable cause" is at all woolly or indistinct. You just have to apply the common English definition to the words. The word "reasonable" means...well... reasonable. Therefore, you have to have reasonable cause to get the information, rather then unreasonable cause, good cause or just some cause to want it. The law requires that only someone with reasonable cause may be supplied with the information. Clearly then the person requesting the information has to demonstrate to the DVLA that they do in fact have reasonable cause and if they say that it's for pursuing a fine, penalty or other charge related to a breach of contract between private parties then they clearly have not met that burdon because such charges are unlawful and therefore are unenforcible at Law. The issue of contractual penalties is not a novel or ambiguous area of law and the principles relating to it have been established for over a century. Everyone who has studied law will know about contractual penalties, including the legions of lawers no doubt employed by DVLA. I know for a fact that DVLA knows about the law relating to CP's as I have written to them about it. It is for DVLA to satisfy themselves that any request for information is founded on "reasonable cause". It is not a case of the DVLA being arbiter of whether the parking company is right or wrong as they are clearly wrong as has been established in law on several occasions in well known cases. If I wrote to DVLA requesting your info because I've decided to issue a "fine" to everyone who drove past my house in a car painted in a colour I didn't like then they'd tell me where to get off as I clearly would be pursuing a sum that wasn't enforcible at law. It's the same with private parking companies. DVLA know fine well that these companies are pursuing unenforcible and unlawful sums yet still give them information. P.
  11. This is just so much horse****, from both the banks and the OFT! For years and years the banks made no suggestion what so ever that these charges represent a fee for a service. Every letter Northern Rock ever sent me regarding charges said I was being charged "in order to cover our costs". Moreover, the charge simply cannot be one for a service because there isn't any service that is being provided that is capeable of accurate definition. Returning a DD is not a service, it's the refusal of a requested service, you wouldn't go into a pub and expect to be charged £30 for the "service" of being told the John Smiths had run out! An overdraft is provided with interest being payable for the service of lending you money. Going overdrawn, or exceeding your overdraft limit, without permission is specifically prohibited by your T's&C's, therefore you are in breach of your banking contract. For one party to argue that the effect resulting from a breach of contract by the other party amounts to the provision of a service by the inocent party is ludicrous in the extreme. You are, in effect, saying that a course of action which you have jointly and specifically decided to make sure does not happen somehow becomes acceptable and chargeable. If this is genuinely a service that is being provided to the account holder then he is entitled to have it's precise nature defined for him and under what circumstances it will, or will not, be provided. He would need to know this as there is a duty of care when providing any service that it is provided with reasonable dilligence and a bank would be liable to him if they negligently performed said service. P.
  12. DVLA are only allowed to release information to persons who have "reasonable cause" to have it. If you take an example relevent to many of us here - the pursuing of a "penalty charge" by a private individual or fim for over staying, failing to display, etc - then it is difficult to see how the pursuit of an obviously unlawful and unenforcible debt could ever be regarded as "reasonable". Such behavior is, by it's very definition, entirely unreasonable. P.
  13. The point is though that the debt in question doesn't exist. No one has a right to pursue a debt that you know is unenforcible at law. If the debt is enforcible then they have the right to use menaces, such as a threat of legal action, to get it. Making a demand for money by using menaces is the crime of blackmail, unless the use of such menaces is reasonable and using menaces to pursue something you have no right to in law can never be reasonable by any stretch of the imagination. P.
  14. Personally, I would write to them one more time (actually I would ignore them but it's good to be seen to be givng them every opportunity to go away) and mention that you have previously pointed out the unenforcibility of their charge to them and that you will not be paying it. Point out that continuing to pursue payment of a sum of money by threat of legal proceedings, or any other form of menace, that the creditor knows is not lawfully due may constitute blackmail and criminal harassment both of which are arrestable offences carrying serious penalties. That being the case you will inform the police should you recieve any further communication from them. Also, make it clear that should you recieve ANY further communication from them you will charge them £5 for every letter you have to waste your time reading, £1 per minute for any phone calls you have to make or recieve and £25 for every occasion you have to write back to them, and that by instigating further communications they are accepting those charges. Send the letter recorded delivery. In the event that they persevere and attempt to send private collectors to your door do this; firstly, do not speak to them. Keep a note printed in large print by your front door so it's immediately to hand, this way you won't have to remember what to say. It should read something to the effect of; "YOU ARE ATTEMPTING TO COLLECT A SUM OF MONEY WHICH IS NOT LAWFULLY DUE. THIS HAS BEEN MADE CLEAR TO xxxxcompany BY ME ON SEVERAL OCCASIONS. ANY ATTEMPT BY YOU TO COLLECT THIS MONEY BY THE USE OF A THREAT OR MENACE (INCLUDING A THREAT OF LEGAL ACTION FOR NON-PAYMENT) WILL CONSTITUTE THE CRIMINAL OFFENCE OF BLACKMAIL AND I WILL EXCERCISE MY POWERS OF ARREST UNDER COMMON LAW AND PACE. YOU ARE TO LEAVE THESE PREMESIS IMMEDIATELY - FAILURE TO DO SO WILL RENDER YOU A TRESPASSER AND I WILL USE REASONABLE FORCE TO EJECT YOU FROM THE PREMESIS. REMAINING ON THE PREMESIS FOR THE PURPOSES OF PURSUING THIS UNENFORCIBLE DEBT IS AGGRAVATED TRESSPASS AND WILL RESULT IN LEGAL ACTION FOR DAMAGES BEING INSTIGATED AGAINST YOUR EMPLOYER" Send a copy of that to them with your letter. P.
  15. Ok, in brief from memory. Ordered a section of exhaust from an online retailer in March. Exhaust was for an '89 Merc 500 SEC and was selected from their online catalogue after me having entered the make, year and model of vehicle. Part was specifically described as being for that car. Recieved part, took to garage to have fitted - it didn't! There are 3 model variants in the range. The "SE"(4 door saloon), "SEL"(Long wheelbase 4 door saloon) and "SEC" (2 door coupe). Upon further investigation it turned out that the part concerned was a part for the SEL model and was too long to fit my car. Checking the retailers online catalogue again it was apparent that that particular part is listed as being suitable for all 3 variants when, in fact, each has it's own specific part. Phoned the company straight away to see of they could supply the correct part - didn't ring me back. Rang again - no call back. Eventually had to order part from Merc dealers at horrible price. Wrote to the company concerned asking for refund of the part they supplied (£163), plus the difference to account for the more expensive part I had to order, plus some extra for the wasted labour at the garage. Total I was asking for was £283, or thereabouts. Anyway got no reply so wrote again threatening Court action. Just before I was going to fill out the Court forms a manager rang me - nice bloke actually - and offered me £250 to settle, which I did. P.
  16. Does anyone know anything about the potential liability of a local Council as regards it negligently signing off on substandard building work? Here's the story. I had a very interesting conversation with a roofing contractor today regarding a potential HUGE problem looming round the corner for local Councils. The chap was round at a property I have quoting me for a patching job on a small leak on a flat roof and told me about this little problem. Back in the 80's it seems that the Government had a grant scheme that dolled out vast piles of cash to householders to have their properties re-roofed, up to 90% of the cost of the work was available by all accounts. Anyway, as you would expect, all sorts of dodgy types started up in business to do this work to tap in to the drain pipe of free money. These guys used the cheapest materials and the quickest methods to get the work done in very short order. One of the things they did was to replace the original slate tiles with modern concrete ones which were 2.5 times the weight of the originals. Twently years or so down the line lots of rooves are now sagging or causing walls to bow due to the weight because they never strengthened the roof timbers. This is where it gets interesting. My informant claims that there is a property just round the corner from mine that had this very problem. The current owners apparently were highly displeased, as you would be, and have apparently successfully sued the local Council for negligently signing off on the work when it clearly wasn't suitable. Now, I'm not entirely sure what a Councils liability for this type of thing actually is, or to whom, but it might make for an interesting investigation. Curiously, when you look about the surrounding streets you can see various properties with brand spanking new rooves covered in modern lighteweight man made slate tiles. Re-roofing isn't something that is particularly common so I'm just wondering if people have already started agitating and the Councils are paying up? Can anyone shed any light on this? P.
  17. I've just found this on the Telegraph website. It's very difficult to comment from only a brief newspaper report; we don't know how well the guys case was put to the Court or any of the precise details. The reports only mention "overdraft fees". Was his claim only for overdraft fees or was there more that the judge did allow? We don't know. What is correct is that this does not in any way set any sort of precident. No Court, including the other County Courts, are bound by this and the guy has been given leave to appeal. A litigant in person loosing in front of a district judge (stipendiary mag, as was) is vastly different to someone with skilled representation loosing in the higher Courts. It will be very interesting to see how this pans out. A thought that has always been at the back of my mind was that the banks greatest nightmare may not actually be to loose in the County Court but to win! Loosing means that they just have to pay out - a win may mean an appeal (as in this case) the outcome of which would indeed set a precident. That could end up being extremely expensive as if it got all the way (House of Lords) it would be like installing a damn great vaccuum hose to every bank vault in the Country. I could be wrong but I wouldn't be in the least surprised if we saw the bank taking pity on this guy and paying up "as a gesture of goodwill", "not wanting to upset a valued customer", etc, to make sure this case never got to an appeal. They would also have the added benefit of being able to use the case to intimidate anyone else trying to reclaim. P.
  18. And a trillion seconds is 32,000 years. We must read the same articles! If, in the very unlikely event that the banks were becoming threatened by all our reclaiming, then you can be sure that Parliament would step in and stop it. The risk to the economy in general would just be too great if the big banks started crumbling. P.
  19. Ok, late so quick post as I'm knackered. Basically, a business can still deal as a consumer. If the business is purchasing an item or service that isn't directly related to it's business activities it can still be considered to be dealing as a consumer. The case that comes to mind is the case of a shipping/exporting company which bought a couple of cars for it's directors. The company was held to be dealing as a consumer in the purchase of the cars as the purchase was incidental to it's main business activities which was export. The business was the "end user", I suppose you could say, of the cars and wasn't buying them for business purposes, as such. Had it been buying, say, packaging materials then it may not have been held to be a consumer but a business user, if you see what I mean. P.
  20. The charges are just as unlawful regardless of whether the account holder is a company or an individual. A breach of contract is a breach of contract and a penalty imposed for such a breach is unlawful regardless of what legal entity caused said breach. You would need to look at who was legally liable for paying it off I would have thought. If you are jointly and severally liable along with your employer, which means that either or both of you are liable, then I guess you could make a claim yourself. If it is only your employer (the company) who is liable, and they were just giving you the use of the card, then they would have to make the claim as you would have no entitlement to the refund. Although, I suppose you would have a claim against your employer. Not entirely sure on that answer though so don't take it as gospel but I'm sure it's along the right lines. P.
  21. I would presume that if this debt is fifteen years old and you have not been contacted, and no action has been taken to recover it for that time, then it would be statute barred long ago. P.
  22. I agree entirely and have pointed out that it is no excuse for the banks, especially given that it's all due to their unlawful charges to begin with. However, you have to accept the reality of the situation. The banks are being flooded with requests and no business can magic up hundreds of staff over night. Yes, they should be getting the book chucked at them by the Data Protection Registrar but they are stowed off with complaints too. How do you know anything they send you is correct? Just because it's in one format dosen't mean it's correct. As long as they send you what you have asked for, and all of what you have asked for, they have complied with their obligations. P.
  23. Yes, because they were applied under the purported terms of your banking contract and the bank claims they either constitute charges for providing a service or to cover their costs incurred due to your breach of the contract. P.
  24. I think that the problem the banks are having is that the sheer number of requests for information is just bogging them down. No excuse, of course, but you can understand why it's happening. Remember you don't have a right in law to demand information in a particular format, the bank can provide it in just about any format they want as long as it's legible. Printing individual statements is a much more long winded and expensive (for them) operation than simply doing a list of transactions. P.
  25. The limitation Act provides that contractual debts are statute barred at a point six years after the cause of action arose - ie; when the debt was run up. Sec.32 postpones the start of the limitation period until such time as the fraud, concealment or mistake was, should or could have been discovered with reasonable dilligence, so it's six years from that point at which the debt becomes statute barred. Where precisely that point of discovery should be will be dependent on the facts of the individual case and what would have been reasonable in the circumstances. The concensus of opinion on here seems to be that, as general guidance, the date of publication of the OFT report into credit card charges of May last year would probably be a reasonble starting point. P.
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