Cheers Caro!

If it is about passion, then I have already won...but as Gary pointed out there is no place for emotion in court. I guess all I can do is research it even more, but as it stands I feel I have a chance for it. What I don't have is the money should I lose.

Thanks again mate, I'll keep my eyes out for MCCuth.

Just another thought or two...

Undue enrichment seems fair to me and can be argued.

Mutuality seems a non-starter? Why?

The idea of freedom of contract is central to enforcements of contracts and it runs through many of the individual rules of contract law:

• An agreement (offer and acceptance) is said not to exist unless there is consensus ad idem, the so called mutuality of the parties. So even so the parties think that they have agreed on something, there will be no enforceable contract between them unless this mutuality can be shown. The law prevents one party from forcing goods and services on another party without an actual agreement to take them. This is apparent in common law rules on acceptance as well as in statutes such as the Unsolicited Goods and Services Act 1971.

I could argue consensus ad absurdum on this on as well. If there is no mutuality in the agreement, then by its own nature there would be no contract as for a contract to be perfectly formed there needs to be mutuality between parties. Without mutuality, there is no law. Hence mutuality must exist.

he he Caro, watch with interest!!! That was funny.

No, please post as many questions as you can think of. The more is thrown at me the better prepared I am.

Gary,

Thanks, I understand the risks, what I would like to do is research this to its extreme before making an informed decision, and thanks to yourself and Caro I really do understand the implications of this. So please, no more scaring the **** out of me for costs. £7500 is enough for financial ruin. However, if i do have case (a properly researched case) then I may just go for it. So please, no more costs talk, let's see if we can build a case for CI. Maybe with this we could finally get the banks to change their regime at last.

At this stage, thanks to you, I feel like I have stumbled onto something. So can you think of any other arguement that could be thrown my way to deny CI?

The verdict in the westdeutsche was 3-2, the minority ruling in favour of CI, the majority not finding the fiduciary relationship.

I feel that I can argue a fiduciary relationship then I am half way there. My own letters and templates from the CAG site all state "As my fiduciary...". The bank is my fiduciary, this seems a given to me.

Based on reductio ad abusrdum I can argue the existance (or non-existance) of the relationship. Thus, quoting the westdeutshce case, i'm there. Could we now argue a legal situation where CI could be awarded?

I could cover my back and ask that if CI is not awarded that I am then awarded statutory interest rate. But if I can competently argue CI then....

ha ha caro, i am lagging behind you on this one.

So if that relationship does exist, then do I have a case?

Just another thought on the matter....

In justifying his respones, the judge in the Westdeutsche case argued

Reductio ad absurdum as part of his decision in the case.

http://en.wikipedia.org/wiki/Reductio_ad_absurdum

Reductio ad absurdum is also often used to describe an argument where a conclusion is derived in the belief that everyone (or at least those being argued against) will accept that it is false or absurd.

So....

All the banks quote the banking code and that they adhere to it. Basically that sets out a list of "voluntary" codes that it adheres to in order to safeguard the customer. I.e. their charges are clearly defined, they will write to us to inform us of any changes to interest rates for example and so on. They are in effect portraying themselves as our fiduciaries. They have gained our trust with regards to our money. Now if the bank does not accept the relationship of them as our fiduciaries, then they are in effect contradicting the banking code and all of the information that they are printing in their documentations. As such based on reductio ad abusrdem that relationship has to exist.

Once that relationship is in place then the legal precedent for contractual interest is in place.

Have I over simplified things? I think I have an arguement here.

Gary, thanks a million for your points. Yes, I agree, there is no room in a court for emotion.

I will research this thoroughly, and I have to admit that I am no longer so confident in pursuing this. Could I pursue interest at the authorised borrowing rate (as per Mindzi and Lucid) or scrap it all together and simply go for statutory?

Westdeutsche v Islington BC [1996] A.C. 669, [1996] 2 All E.R. 961

Westdeutsche v Islington BC

In equity compound interest can be awarded where there is a breach of fiduciary duty, because it is assumed that the fiduciary will have made compound interest on any profits made, but this equitable jurisdiction does not extend beyond fiduciaries. Therefore the bank had to argue the existence of a trust or other fiduciary relationship, and none could be found in the case.

This was the essential difference between the majority and minority opinions. The minority view was that compound interest could be awarded anyway, even in the absence of a trust or other fiduciary relationship. All their Lordships were agreed, however, that there was no fiduciary relationship in the case.

Is there a fiduciary relationship between a consumer and their bank?

Based on the following link that does seem viable. Could this be referenced against the banking code?

Cork Online Law Review - 2003 - 6 Is There a Need For a Statute-Based Code of Practice to Govern All FI's? - Ross Philips

It is suggested that the banker and customer relationship cannot be fully reflected in the legal context of a statute-based Code. A reason for this goes back to the fundamental principal at the heart of the banker-customer relationship – Trust. Following on from this the relationship therefore can be described as a fiduciary relationship and I submit that following on from that itself, legislative intervention would undermine the meaning of fiduciary in such a relationship. A fiduciary is a person who is entrusted to act in the best interests of another. Fiduciary duties in a banking context are the duty of a banker to act in the best interest of a customer without gaining any material benefit except with the knowledge and prior consent of the customer. Such persons are generally held to conduct their operations in the highest standards of good faith or best practice. The law, I suggest, will be a rather crude instrument for regulating all aspects of financial activities especially one regarding setting of banking standards of practice.

If there is a fiduciary relationship between myself (the consumer) and the bank then that link you posted could be the key I have been looking for.

Any thoughts?

Thanks Caro, job well done! I really have appreciated the concern.

I read that thread and have to admit that I am gutted for the guy. Yes, there are risks invovled and that is a perfect example of it.£7500 is an incredible amount. I would argue that I am claiming bank charges as opposed to mortgage exit fees, but that's not the point. The point is the risk involved.

I am planning on phrasing my poc down the lines of: pay me at contractual rate, if not pay me at authorised rate, if not pay me at statutory rate so that covers my back a little.

Still got time to think about it. I will post my particulars of claim once I get round to completing them. I would appreciate a quick glance through them at that point if possible.

Anyway, thanks for the sound advice, you may now rest. Thanks again!

Now that makes 3!

If I need to come and knock on your door and kick yer bum I will.

But I will be charging travelling costs and interst on top of it, and no, I will not settle for a third of it.

See...we really are all behind you.

Guess it will bring a smile to your face when you log on and read the support!!!

Edit: I am also charging you £15 per response as this is a true estimate of the time and resources I have to put into this to keep you motivated.

Thanks Blue, yes I was quite chuffed with my little earner.

This is what I added to the claims form:

a) £792 penalty charges

b) £ 155.83 interest under s.69 County Courts Act 1984

c) Court Fees: £39

d) Subject Access Request Fee: £10

e) Compensation for the significant inconvenience caused to the Claimant by the Defendant erroneously levying the Charges to the Account: £100

 

It seemed to work, so go for it. Don't over price it though. Its like a poker game, you got the best hand and you want to get paid. If you bet too much they will fold, if you bet a little you tempt them in... Seemed to work for me.

 

Also, follow UKAviator's link. I have had loads of phonecalls from them in the past and if my account was still open with them I would have followed this path with them.

Ha ha 2-1 you are now outnumbered!!!

Please, don't give in the them now. You have done the hard work, just please don't give up. I have read your threads, I know that you are uneasy about it but it really is your money! Don't let them get away with it, you are so so close.

These days I am on this site 2-3 times a day. I check it at lunchtime while at work, when I get home and before I go to bed (slightly obsessive compulisve about it) so if you are unsure just send me a pm and I will get back to you asap.

These really are bullyish tacticts, damage limitation. How they get away with it I don't know. Actually I do. They get away with it because people dont stand up to them.

WE ARE ALL BEHIND YOU 100%!!!!!

Hi Caro and thanks again for taking the time to warn me about my case. I really do appreciate your concern.

I understand that I am liable to cover their costs, should I lose. However the amount of money that I stand to win would literally change my life. I would be able to clear all of my debts, re-establish my credit rating (i am disputing some defaults as I type) but most importantly it would also give me the money to put down a deposit on a house. What I stand to win is the chance of a better life, with no more sub-prime credit lenders and so on, and for it I am willing to fight to the death. However, you are very right in saying that I need to consider the possibility of the case being struck out, and for it all I can do is read as much as i can and put forward the best particulars of claim that I could possibly come up with. Regardless of other people's advice, it is my money on the line.

Assuming that I do all of my research and fill out my claim properly, then it is fair to say that the bank will not disclose their true costs with regards to the charges. So claiming those back is a relatively straight forward process.

Now I agreed with my bank in my contract/terms and conditions that I would cover their costs incurred by any bad money management on my behalf. However, at no point did I agree that they could charge me more for it, as that would have been unlawful. In claiming the charges, the banks have abused their position as my fiduciary as they took more money from me than I ever allowed for them to take. Let's not forget that the bank is in a very priviledged position and can take money out of people's accounts as they please (as honory's situation in the LTSB thread clearly exemplifies).

There is a principle of mutuality in the agreement so what is fair for them should also be fair for me. Now the banks have given me the tools to go over my authorised credit limit (cheque guarantee cards and so on), and when i did go over those limits they charged me 29.8% interest as I had not agreed to borrow money from them. So far so good.

Now, in the instances that the banks took money from me through the charges they were guilty of the same process that I was when I went over my overdraft limit. They charged me 29.8& on that debt and as such it is only fair that I can charge them just as much for it.

The Law on reciprocity is clear. If a contract term applies to one party in detriment to the other, then it also applies in opposite circumstances.

So why not? Ok, sorry if this is sounding like a rant, it is not meant that way, I am trying to convince myself while at the same time raising some issues.

They could argue that a contract does not exist, merely terms and conditions, but then my counter arguement is why include a signature space on the documents? In all effect the terms and conditions are the contract.

If I plead my case properly and explain about reciprocity and mutuality then on what grounds could it be struck out? What is it about my claim that is so wrong?

My arguement is simple. Prove that those charges are a legittimate estimate of your costs, if not then pay me back my money, and the interest on it, not just at statuatory rate but at the same rate that I have paid them for the same unauthorised borrowing.

As for damages, yes this is a very tricky situation and one that I am considering carefully. I appreciate I am treading water with the compound interest rate so this may not be the viable as it may alienate the courts and deminish what I think is a well constructed case.

I do feel however that I have a case for damages. If you look at the fact that some months those charges amounted to 30% of my wages, then it has forced me to borrow money from sub-prime lenders as if they had behaved lawfully throught out, then I would only have paid the true cost of those charges, it would have left me with more money and I would not have had to resort to sub-prime lenders. Could I possibly claim back charges and then should I win, claim back damages at a different date or rather the claim would be deemed as settled and that would be it?

Lastly, stauatory interest. Is this an interest based on an oustanding debt with them. I.e they owe me 12k so far (assuming contractual interest), would I not be asking for interest on the debt? I'll research this fully however it is not at the top of my priority list, but if it meant i had a chance then well, why not?

Ok, I feel better now that i got all that off my chest. I really do wish I had a crystal ball to see what I should do.

Any comments by anyone I would be really grateful, as I will consider every option there is in order to create a better case.

Thanks again to all those who offer advice.

Got to watch my language here as there seems to be a few [edited] comments. I still can not believe the cheek this bank has.

Please honory, go to the papers with this one. Raise your profile and then sue them for damages and distress. We are all behind you on this one. Hope you are well despite such a large chunk of money going missing from your account. Best of luck again and please keep us posted on this one.

Ok, tracy, first thing's first, you really do need to start your own thread. That way people will be able to find you and advise you on your claim. If you want send me a pm once you have set up your thread so that I can find it and i'll guide you along the way. I only charge 25% of the total claim (kidding)!

I wouldn't advise you to go for the contractual interest rate. I didn't with my credit card company but thinking about it for my bank. It is much more complicated, and for the amount you are claiming it won't make a huge difference.

If you have all of your statments then you can move on to your preliminary letter. If not time for a SAR request. In your prelim letter you are only asking for the charges back, interest only gets added at the court stage. Don't worry though, you will get the chance to add interest as they will definetly say no to your charges. BIG SURPRISE!!!

So, I'll walk you through it all but you really need to start your own thread. As I said, send me a pm once you have and I will be able to advise you through it all. Good luck, if you stick to your guns and do things properly you willl get it all back and be able to get them off your back.

Ciao

Hey RCR it's getting harder all the time, can't even find a word to rhyme (lol).

Yes I had the same response from them at first, offering me £12 so please please stick to your guns, you are so close.

I am not sure what stage you are at. Capital One sent me the partial offer after my prelim letter, which I followed up with an ammended refusal of offer letter and letter before action. They wrote back confirming their offer of £12 (per charge).

Once the lba time was up I raised court proceedings and sent them a letter refusing their offer and informing them that I had raised court proceedings and gave them the date.

They replied back again and confirmed £12 payment offer.

This time I chose not to reply cause I had given them plenty of opportunities. One week later I got a letter offering me full payment.

So....STICK TO YOUR GUNS!!! You have done all the hard work now the ball is in their court. I looked at my capital one case as a tester case for my biggie, and yes it worked.

Also, in my letter to the courts I asked for interest (he he) and £100 for stress and anguish caused by it all together with £100 for admind costs.

A £800 claim thus turned into £1200.

DO NOT ACCEPT IT!!!!

God I could copy and paste that line in a hundred times. If you are unsure or need motivation feel free to pm me as much as you want, but really are nearly there and giving up now would be criminal.

Stick to your guns, this will give you the confidence for your biggie and the money, well, don't tell me you don't want an extra £500 or so pounds. You really have done all the hard work, please don't give up now!!!!!

Update:

Caro, thanks again for pointing that out. I have sent a revised list of charges to LTSB including charges up until 1/4/07. Also detailed the interest I am claiming in better detail.

I am very disappointed that you have failed to respond to any of my communications with regards to the regime of bank charges that you have been debiting me.

As you have failed to respond to any of my letters I can only but assume that this must be your final response in view of my complaint. I am shocked and astounded that despite writing to you on 3 separate occasions and giving you ample time to respond, that you have made no attempt at acknowledging any of my letters and, in view of this, I will be forwarding my complaint to the Financial Services Authority as you have a duty to respond and investigate my complaints.

In the time that has elapsed, I have reconsidered my position in relation to the extent of my claim for unlawful charges, and I would ask you to note that I am adjusting my claim to cover the extended period of 1st December 2000 to the present date, and to include compound interest at Lloyds TSB’s unauthorised overdraft rate of 29.8% EAR. I am applying this rate of interest to the monies that Lloyds TSB has unlawfully deducted from my account over the years, on the principles of implied mutuality and reciprocity, and unjust enrichment.

The revised total of the charges, and interest debited as a result of the charges, stands at £6,281 at today’s date, on which I have calculated interest due (to date) of £5,463.49, bringing my total claim to £11,744.49. I have enclosed an updated schedule of the figures for your information. I am also seeking interest on the above sum of £9.59 per everyday that this balance remains outstanding.

I wish to draw your attention to the fact that I have previously asked you to demonstrate that the bank’s charges are lawful, by providing evidence of the costs to which the bank has been put as a result of my account breaches. I have also previously requested details of any manual intervention on my account. Neither has been forthcoming.

Consequently I am of the view that Lloyds TSB is unable to demonstrate that its charges are lawful or that there has been manual intervention in relation to the breaches that have occurred and the charges that have resulted.

It is my considered view that Lloyds TSB, as a multinational corporation of very high standing and repute in the business and banking world, with the benefits of accounting expertise, in-house lawyers and/or access to top legal experts, owes a duty of care to its customers, in relation to ensuring that it is trading lawfully; and has therefore always had the resources to know that its charges were and are unreasonable, punitive in nature and therefore unlawful.

The level of the charges can be seen to be unrelated to the costs of the services provided; to exceed actual individual instances of loss to the bank, and to unjustly enrich the bank.

Based on the above, I believe that if Lloyds TSB is unwilling to settle my claim in full out of court, I will have no alternative but to attempt to persuade a court that by electing not to reveal its costs and the profit element of the charges, Lloyds TSB has always concealed the fact that its charges are unjustifiable and unlawful.

 

Further, I will aver that I mistook the charges to be lawful when I paid them, because prior to becoming aware of the OFT’s report this year I had trusted Lloyds TSB to operate lawfully.

Please note that I require unconditional repayment in full of £11,744.49, by cheque, within the next seven days in order to conclude this matter, failing which I will be proceeding with a court claim for the above sum together with damages without further notice to you. In view of the costs involved for both parties I hope that Lloyds TSB will decide to settle my claim before that stage becomes necessary.

Yours sincerely,

So here goes again, this time everything seems to be in order. I am surprised (ish) that they have not answered to any of my letters. Maybe they had spotted the error and were hoping i would proceed to court before highlighting it. And this is why this site is FAB!!!

Ok, I guess its now time to complete my poc and come up with a figure for damages. Will be comparing my charge list and see if anything interesting pops up once I compare it to my credit record.

On a different note, could I also push for stauatory interest at 8%? I will chase this one up as well. I don't see why not thought. I figure the interest they owe me on the account is for their unauthorised borrowing from me, anyway this one was just a thought.

As I live in Scotland I think I will be going for this through the English court systems, seems to be a bit better.

Happy weekend guys n gals!

Hey Blue,

Yes. That is a standard response from them. They will answer in the same manner when they receive your letter before action.

Have a scan through my thread as it is all very similar to yours. I added in £100 for stress and anguish and a further £100 for admin costs.

Good luck, not long to go now.

Well, seems like you know what you are doing so best of luck to you.

Hi, just subscribing to this thread as in the same exact position. Loan for a pc from pcworld.

My loan was defaulted back in 2005 and I paid up.

I am sending away for a copy of the agreement. If they are not able to produce this, would that mean that I can actually claim the entire loan amount back from them (plus usual interest) and have the default removed?

Yes Caro,

I am posting my questions on my thread, however finding some comprehensive info on the Scottish system is proving difficult. Questions regarding my claim were intended as guideline to explain my situation.

Ha ha, as bad as me, get back to work you bum ;-)

Hi Caro,

Thanks for stopping by my thread.

The charges are £6216 (rejected DD, standing orders, etc...)

Whereas the interest figure is calculated at 29.8%. As the bulk of my charges are from 2002 it does add up to this figure. But you are right, that was a major oversight on my part. I should have detailed that better. I am planning on sending LTSB an ammended list of charges as I am now including charges for Jan-Apr 2007. Wow, reading that paragraph again it does look atrocious. I really could have detailed that better. Still, this is what this site is about, so thank you very much for pointing that out.

Yes, I am also planning on asking for damages. I appreciate I am going into unchartered territory but the fortune favours the brave (or insane).

If I look at the charging pattern it seems to go in quarters. 3 months in a row of charges of around £200-300, when I cross reference it with my credit record those are the months that made the most damages. I would argue that if it had not been for such charges then I would have been able to limit the damage on my credit file. The banks are after all in a position that they can just take the money out of my account. The end result is that I am today a sub-prime customer. I can also reference periods in the charge pattern to taking up loans with sub-prime companies (welcome finance) and the criminal interest rates that they charge.

Anyway, I am at work and I guess I should be doing some work. Still, got the weekend to smooth everything out. Thanks again for popping by.

Thanks teebum,

I am going down the same lines, I thought maybe you had detailed the time involved. I'll go down the same lines and see what happens.

Cheers!

It's a mistake to think that the only way a bank is going to 'win' one of these cases is to successfully argue that their charges are lawfull. all the bank really has to do is 'not lose', and the most effective way of doing that is to convince the sheriff that your case is flawed and should be dismissed.

Very good point there and one that has made me think. I am in a very difficult position in that I am pursuing 6.5k in charges, 5.5k in interest (@29.8%) and will also seek damages. The Scottish judicial system seems very antiquated in these circumstances, however, it is very interesting that even if you are going through a summary court you need to prepare a proper claim or have it ruled out. I suppose respect for the courts and the judicial system is paramount.

One question please. Due to the size of my claim I need to raise an ordinary action and this may be heard in a summary court (depends on the judge) and if too big then referred to a court of session.

I am confident with my POC, it has grown considerable from the simple template letter. Would it be viable for me to raise a summary action and hope that it is read in that court, and have a solicitor on standyby in case it goes to a court of session and then get him/her to reppresent me?

Or should I just take a trip south of the border?

Very interesting Perseus. I thought it was 14 days, so 12 working days is not that much of an issue, however 30 calendar days for criminal default is very intersting. I'll have a scan for it, anything you could elaborate on?

If they do not respond with 12 working days, do I need to remind them? Then 30 calendar days and if no default has been removed I can move to "criminal" proceedings. Criminal? Can I have people arrested? Ok, maybe an ott remark, but would be really interested if you had any further info on it.

Cheers.