Hi Johnny

 

 

 

I'm fairly sure I can see what you're getting at - though Cobbetts don't specify that's the problem either.

 

As regards other claims, in some cases I've seen the judges have been ordering the Defendants to identify the clauses under disclosure.

 

Cheers

 

Michael

Yeah no surprises there from cobbets they dont want to make it easy for anybody, by telling them what their doing wrong.

From alot of the other cases going through im sure the barristors see that point straight off, though they probably know their gonna pay very shortly and dont make an issue out of it. Cobbets particulary seem to drag their heels dont they, out of all the banks barristors these are surely the worst for it. But as with most cases they themselves know its only a matter of time, as very few will be defended properly. Though im sure they will like my own RBS claim for pre six year, fee's and PPI all in one claim lol

ps. Maybe it would be a good idea to make a mod aware of this and recommend a slight adit to template (ie dont forget to mention which term you are actually making the entire claim about)

Best of luck mate your responses are classics !

hi,

have today received the first package of statements going back to january 2000.

my understanding is that i would only be able to take some action from charges made from january 2002..........is this correct?

also the account was closed by bos sometime in 1999 and was only used by them to deduct my voluntary agreed monthly payments and add interest

since thestatements supplied start at number 84 jan 2000,i cannot see when exactly the account (a) went into the red and (b) was stopped by bos.

 

blair oliver and scott ltd confirmed to me today by telephone that the debt was passed to them in 1999 and was for £619.88.

they also told me that to date i have paid into the account £3080.

 

so you probably guessed i am somewhat confused as to what to do now?

non of the statements i have show anything other than my monthly payment and their interest added........(cash cow).

 

advice gratefuly welcomed.

Hi 12 promises,

i can see your confusion as this may be a little bit tricky though not too tricky

OK firstly you CAN claim beyond 6 years though this carries a small risk and requires more work on your part, and the chances of it reaching court are alot higher. (all my claims are going to be per six years so you can watch me do it ) If the debt was passed on around 2000 do a CCA request and send SAR, better still send SAR to the debt collectors and in that ask for the agreement and deed of entitlement aswell (sorry if i have already said that)

We patient and wait for these details to come through and see what shows up, this will give you a good idea of what fee's they have charges and what interest they have added.

You say the statements you received didnt show any charges at all ? did you expect that or do you think they have kept some of the statements back from you ?

Either way do your research and try and work out exact dates ect. if you have any statements of your own then compare these with what you have been sent.

Best of luck

ps you can always PM me if your stuck (my "Fee" is proportionate ) JS

Johnny

Hi Michael,

lol yeah i see your point and i agree to a point, however i must say that yeah there is loads of claims that go through that arnt strictly correct.

I must say though that this is a fairly small point as most judges in a civil court would see the simple mistake and allow it on that basis anyway.

But they are correct in pointing that out though. What i mean is if someone is saying somethings unfair ok, but whats unfair ? the bank, the secretary, the managers wife, the dog ? and to what does the claim refer ? somethings unfair but knowbody knows what, if you see what i mean.

Like i said this is a fairly small point but correct in law, and yes the CAG templates must therefore be incorrect. Although people are supposed to add their own particular personal details ie, account number, name, address, what "Term" in that particular banks terms and conditions from that particular year they are actually referring to. (so the CAG templates are correct really) So the case becomes personal to them with their own case law ect ect.

Sorry mate im crap at explaining things i hope i made some sense on this, it took my dad about 15 minutes to see exactly the same point.

Having said all that im sure the judge would ignore that point in a civil case and would give most people chance to explain themselves. Though in a criminal case that point would be laughed out of court i expect.

Its just i can see that you have done alot of hard work and research on this (like myself ) and i get the impression you like things done by the book, and to be proper !

IMHO

Regards

Johnny

Thanks for your suggestions progenic. If this has not been mentioned in your POC's can the argument be used ? Quasi Contract ???

 

I am off to research....

 

Milly X

Hey Milly,

Well im not saying that it cant be used in the case as im sure a judge would see through what the barristors are doing. In a criminal case then im sure this point would be valid as both sides would be expected to produce a professional and legally correct argument. However in the civil courts things are different as you are the litigant in person and are not really expected to know what your doing.

They do have a very valid point though, you cant acuse something of being unfair, and not in line with UTCCR, SOGA ect but then not actually say whats unfair. ie is the bank unfair, the manager, his wife, his wifes dog ? whats unfair and what is it specifically relating to in law ?

What referrs to what ? do you see where they are going with this ?

when my dad pointed this out i could see straight away he was right.

Alot of people are making this very same mistake, and like i say i dont think it will matter in 90% if claims anyway because they wont make it to court. And even if they do i think most judges will see what the defence is trying to do but wont allow it.

Though to be professional and correct, and to make a case that actually makes sense i think it wise to take your time and make a proper case.

ps. "quasi contract" is sort of in between Tort and Contract Law, when a claim under the misrep act is brought for an unfair term for instance, its often referred to as a "quasi contract claim". I wouldnt worry about that too much

IMHO

Johnny

Hi all,

on gary's point of unjust enrichment (very valid point) it is very well known that in case law almost every case that goes by a judge on the unjust enrichment basis he almost always doesnt award contracual interest.

There is a few circumstances in which this would happen though its highly unlikely to be awarded in a bank fee case (if and i doubt this very much that the judge would accept an argument of unjust enrichment) The whole subject is in itself a very complex one as far as the law goes, and is fraught with dangers for the claimant.

I have read over 50 cases on the subject of late and most of them either failed on that issue, were struck out, or the claimant ended up using the defence in the alternative.

I would seriously recommend that anybody wanting a good argument for contractual interest try using the misrepresentation act s2. And on studying the subject in detail you will find that the judge almost always awards interest at contractual rate, almost always awards costs ect and on the face of it the whole subject is far less risky.

The case would have to be bought under whats known as "quasi contract law" and in this situation a couple of interesting things occur.

The issue of proof is moved to the other side, ie instead of you needing to prove your case the defence has to prove that you are wrong (then ofcourse prove their costs - not gonna happen)

The judge will almost certainly then award you full compensation for this.

Their is loads of good case law on this matter, more than enough to blow the defence right out of the water

good luck to all

Hi michael,

Dont want you to think im trying to teach anyone to suck eggs or anything, but after some advice from my old man last night (who has a very long career as a law lecturer) after he had read a few PoC's (not yours but other big names on CAG).

He was under the impression that the likes of cobbets are correct to point out that some of the PoC's dont make a legally recognisable claim in law.

What he referred to was this, nearlya ll the PoC's were correct apart from one small point. The actual "Term" from that particular banks T and C's must be spefically referred to in the PoC and each subsequent claim.

ie the UTCCR the term is unfiar because of a disproportionate penalty (at that point you must specify exactly which term you are saying is unfair)

And so on and so on for each and every point in the PoC if you see what im driving at.

On looking through many PoC's i have noticed that the defence always point this out very quickly. Not that i think it would matter too much, though to be correct and proper i think it a point for some to take note of.

Johnny

Rung mBNA today before sending LBA. They young lady said they have a full 28 days from when i sent my first letter so I will get a response on or just before 8th March. I hope they pay out in full other wise its court here we come. Also they didnt comply properly with my S.A.R - (Subject Access Request) and only sent statrment. Correct me if I am wrong but a SAR covers any information they have upon me does it not and an manual interaction they have made on my account.

 

Advice to all you skilled experts out there please ?

Hi intercity,

well firstly under the DPA the data controller only has to provide personal information and info that is in a relevant filing system. Now this is where it all gets a bit cloudy as what each data controller calls a relevant system can vary greatly. You can find definitions on this on the ombudsman website of course.

Secondly manual intervention is very rare and this will almost certainly not be in the DPA request basically bacause there isnt any, and what there is if any will be very sketchy.

They should have sent you a copy of your ariginal agreement though and of course all your statements ect.

About a week before LBA is out of time, ring them and tell them you are a reasonable person and more than willing to save costs and court time, and settle out of court. This is of course what in the end they want, so you will probably find them will to comply with your request.

Best of luck

Lol good news my mate.

Will you be disclosing all these little gems at some point when safe to do so ? Your PoC specifically

Sent Lee feltham from gmacuk (On:Line finance merged) who is a supervisor there, reminding him of his obligation under the Data Protection Act and that u until now this request has been ignored.

The email was pretty snotty (as per my speciality) stating the facts in very clear and basic terms so a five year old could understand the situation) Strange though how he still hasnt responded

No worries i have all the time in the world and they only have until next friday to comply. I imagine the fact that they failed to give me £650 of my own money back is worrying them a bit

Ah well the interest i earn @ 16.9% has clocked that up a bit now, not to mention the £900 of fee's they have charged me.

This is a great way of saving money in my opinion, come to think of it all my time @ £9.25 per hour, and stationary costs, and postage, and compound contractual, and various damages.

Dont ya just love the law

Life is good huh !

Hi again electrode,

firstly well done for getting the default removed as you rightly say thats often the hardest bit, as to do that is basically an admission (although they might say without predujice we dont want the costs ) ha

Most of the standard claims only involving fee's less than six years with no complications then they dont have a leg to stand on in court, as we all know. And its just a matter of time before they pay up.

I have read johnnies thread and yes its long lol.

What i have noticed though in the claims that do make it too court the barristors are really stooping low by trying a feable attempt to pull apart the PoC's of claimants (scraping the bottom of the barrel you might say) Clearly to me this is a last ditch attempt in panic to get the case thrown out, just incase they actually have to reveal their true costs.

However having said that the PoC does need to point to a specific term in that particular banks T and C's otherwise the claim is meaningless.

From what i can gather most of banks banks word it pretty much the same though, insisting they have the right to charge in a default.

Wrong ! (well only their true costs anyways)

Ron point taken

Glenn yeah i agree and indeed have thought this for a while now, however i personally dont think it would make too much difference to many peoples cases. But clearly from a point of law a standard bank or credit card argreement doesnt fall within the remit of a fiduciary relationship.

I know the alternative argument of claiming based on a fiduciary relationship and purley out of mutuality on paper seems alright but in reality IMHO is a weak argument anyway. I would advise that its one best avoided in most situations (apart from as Glenn said in the case of a directorship, possibly a mortgage situation, investor or trustee arangement) other than that i dont think it would hold up in a court.

sorry i have lost the plot where this thread was going slightly, maybe back onto the limitation act perhaps ?

maybe someone can steer us in the right direction again !

Well Halifaxs' time is up at the end of the week, and considering I haven't heard a dickie-bird from them even acknowledging my S.A.R - (Subject Access Request) letter I thought I'd give them a call.

What a nightmare. Spent most of the morning talking to several dimwits that insisted on saying 'I can't find you anyhere on our system' My patience began to run out when after being put on hold for 20minutes I got cut off:mad: Eventually a lady from their very own Data Protection Act Department contacted me back to say they had my details (at long last:rolleyes:!!!), there was a backlog, and my statements would be with me by the end of the week.

So, it's not looking particularily good for Halifax at such an early stage, incompetence already reins through and through!!!!

Lol @ that muggins thats why i wrote my nice little reminder to them just so i could atleast get an acknowledgement. They have till the end of next week with me and if they are a day late hmmm well something will be on the way to them.

Keep on keeping on muggins

I'm no Expert but I assume you’re claiming back charges from Halifax. I have just successfully claimed my first victory after a court claim was served, they settled before court date even after stating they wished to defend. All I asked them to do was to disclose their charges to their finer points and make this information public.

Their isn’t enough space in the MCOL to define specific terms and conditions that you are claiming for, so all I can suggest is that you read read read and when finished reading start reading again. The templates folder has all the written stuff you need, including the MCOL template.

Hi again electrode,

yeah point taken, though a few things are different with my case which i dont want to fully disclose at this point but its a long way beyond 6 years and im going for various other things within the claim so i know it will be defended and upholded by the barristors. Even though they said they intended to defend this is very standard protocol and scare tactics. They probably didnt even read your PoC (to be fair) but when you look at the real cases that have made it too court, the first thing they do is laugh your PoC into a strike out.

BTW out of couriosity what did you claim to be unfair in their terms ? or did you just say charges in general arent fair ?

here you go, it's not an extensive T&C's but highlights charges and various other fees. I don't think you need to atually state T&C's in your claim, just that they are unfair and unenforcable.

 

Halifax - Understanding Charges

Thanks electrode, but i have to disagree about not exactly listing the specific term that is unfair. The first thing the defence do is point out the fact that the claimant hasnt actually specified a good reason for a claim. ie what term is unfair.... ie is the bank unfair, are their terms unfair, is the judge unfair ? whats unfair what exactly !

And this is what the defence laugh at straight away people arnt actually stating what they are challenging...a fatal flaw in ones argument dont you think

I dont mean to sound sarcastic (as im not) just playing devils advocate. I have read loads of PoC's and the response to them from the defence, and generally the claimant has forgot to state what they are actually challenging.

You cant just say somethings unlawful but then not comment on what your referring to can you.

Its just i know my case will reach court and of course i need my house in order first, so i need to know what term exactly the UTCCR are in respect of.

Clearly the term will be along the lines of "the bank has the right the charge a fee under a default"

Hi semi,

yeah true enough

did you notice how much Barclays declared in profits this week ? ha £7Bn

keep an eye open for my progress as i have a predefined game plan, though i must say possibly not condoned by CAG.

Though you will see a chnage in tactic when i receive my statements, as then the fun will be over and the real game will begin. Im going to hit them hard you watch

best of luck

Hi Ron,

im not sure i agree with you on that point as the CAB is specifically there for people that cant afford a solicitor surely ? i have been along to the CAB and two occasions and on both occasions they have given me legal advice, or advised me of my legal rights and the legal viewpoint on the subject matter.

Maybe the CAB varies from town to town but in Nottingham they give as much advice as you require. Of course i dont think the CAB could be relied upon in the same way as a solicitor as they are not actually legal experts.

Come on guys how are you all making your claims in your PoC if you dont know the T and C's you cant make the claim !

So is that right,i shouldnt have to pay any more money to halifax,even if i asked for six yr statements, and i had forgot that i changed my card from credit to debit card over 2 1/2 yrs ago.

I should go to the bank and asked for my credit statements now going back the previous 3 1/2 yrs.??????:-? :-? :-?:-?

hi mummyofthree,

as far as not having to pay anymore money for defaults well No thats not scrictly true the banks continue charging as they always have. For every account you have had you need to send a separate S.A.R - (Subject Access Request) (well you could of listed all your accounts in the one S.A.R - (Subject Access Request)) but probably as easy now to send a new one listing your CC account number and wait for statements. Your entitled to your entire history with the bank even if this was twenty years ago so dont be fobbed off with only a couple of years worth.

Yes get hold of a law pack kit (i have one) and it is very usefull reading for bedtime, gives you lots of reassurance and breaks down the process step by step.

Once you have your bank statements then total up the charges, and put them into one of the spreadsheets and work out the interest they owe you (depending which route you want to take of course, ie contractual interest ect) and then print off your Prelim letter with your details on it ie account number and anme abviously, then give them 14 days.

Then send your LBA (letter before action) letter and again give them 14 days. Then if they have not made you an offer, ring the branch and ask for the manager tell him the situation and if they dont offer to pay you will be starting court action and at that point they will be liable for your court fee and 8% interest, (be reasonable with them and they might pay there and then)

If not start the court process (the law pack will help loads with this) everyone on here will offer support and guidance though its only you that can actually do it.

Be strong girl...go for it !

thanks for your reply.

 

is this what i should expect from all the banks, that these manual interventions won't be shown? is it like a standard?

 

from what im understanding this can work for you.

 

as i recently had a call saying if i pay the £45 now, they would credit my account with £80 from the charges they took. so this wont be recorded?

 

god as if this wasn't complicated enough lol.

 

best regards

 

Semi

Semi you have confused me a little as you dont seem to be the person that started this thread, however dont worry about the manual intervention bit this means nothing its just aprt of the SAR as a test to the bank. ie asking the bank if they actually had to do anything in the process of charging us £39 for what seems to be an automated process.

All charges and fee's will be sent to you, as will anything else the bank deems relevant under the DPA. I actually sent a different SAR and it gave alot more detail about what i actually wanted but dont worry about that, you have done everything correct up to yet.

I suggest you spend a few months now reading up on issues on this site and researching the Law and real case law in order to educate yourself. As you always have to be prepared to end up in court (worst case scenario) and of course if you do you want to make sure you know what your talking about huh

heres a link to my halifax thread http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/59099-progenic-halifax.html

Best of luck

Matt hi,

another good idea is to do a CCA request on the DCA and find out if they own the debt or are just acting as an agent for the bank, also in the CCA request ask for a copy of the deed of assignment as this will prove it. The CCA request basically just asks for a copy of the original agreement as without this the DCA cannot even ask you for the money. Also in the CCA request to the DCA let them know that the account is in dispute and that way they cannot get a penny out of you until the account is no longer in dispute.

Hope this helped mate

BTW you can find a template in the library for this and it just costs £1

Hi clairdol,

dont feel worried hun you are fully entitled to your own money back with interest. Dont send 2 spredasheet claims to them just send the one you have made out with contractual interest on it, otherwise they will pay the lower one for sure. Thats if you want to go down the route of contracual interest, or are you referring to the standard 8% court interest ? if so dont mention the interest at this stage just send the Prelim letter.

best of luck (not that you will need any)

Does anybody have a copy or a link to the halifax T and C's ai cant find them anywhere, i have looked all over their site. When i opened my account i must have thrown them away (doh)

I need them badly to put my case together as without them i have no case

anyone help ?

hi birchave0 again

i will be claiming compound contractual interest and it will be a pre six year claim also, so all in all it should be very interesting. Im sure halifax will see it through to court though im quietly confident based on the case law i have gathered.

thanks for that joncris, i didnt think there was a limit based on CPR although its quite a large document i couldnt be sure.

I have seen in quite a few defences now, the barristor make reference to the claimant in the context of CPR.

While im thinking about it do you have any links to a particulary noteworthy PoC that sticks in your mind ?

cheers

a question for bong, joncris and glenn

im sure one of you guys will know about this, under CPR is there anything that states or makes reference to the size/quantity of material used to make reference to during the case. What i mean is, is there a limit to the amount of case law ect you can bring along to court on the day or does CPR have a limit ?