MamaKitty vs. Smile

[MamaKitty]

Having made a successful claim against Barclays a few months ago (which was resolved a week before the case was due in court) I have had to start another claim against Smile, my parachute account! They have crippled me with bank charges. I have only had my account for less than a year and it has only been over the overdraft limit for a few months of that time but my charges are currently at £585, with £180 of that in this month alone.

 

I'm currently at the stage where a stay has been applied to the court case. I sent off my N244 just before the deadline (I'm a chronically disorganised mum of two toddlers, a hopeless case!) with my witness statement etc, although I couldn't find the OFT POC and there weren't many examples of successful claims against Co-op and Smile in the litigation database, but hey, the witness statement seems comprehensive and persuasive.

 

I'm also confident because my only income is from benefits (a whopping £100 approx a month from very basic child benefit and child tax credits, I'm no benefit junkie!), as is evident on my bank statements, so I'm hoping that will work in my favour, despite my bad eBay habit (I've got 2 children and love a bargain and never buy them new clothes or toys) and I'm hoping the court won't take into account my husband's income. I'm honest about my situation to the benefits people so the rest shouldn't matter.

 

My big problem is that two of the worst months for charges have happened since I started the court process and I'm hoping to avoid having to make two claims. Do you think it's worth sending a letter to Smile pointing out the strength of my position and hoping they cave in early? The letter I've written is as follows, I'm just really worried that I'll weaken my case somehow, I'm really not confident about legal matters and much as it seems straightforward to me I'm scared that I'll say something wrong and end up being the one case that ends up being totally trampled in court.

 

Anyway, here's the letter:

 

I am writing to you regarding the charges taken from my account which are the subject of a County Court claim, details above.

 

 

I have recently sold one of my properties after a delayed completion, causing me financial difficulties due to an unexpectedly large gap between the tenant moving out and the house being sold resulting in large mortgage payments with no rental income. During this time my only income was from Child Benefit and Child Tax Credits.

 

 

It was during this difficult time that the penalty charges were levied on my account.

 

 

My current situation is that I have a lump sum resulting from the successful completion of the sale of one of my properties and I am reviewing my financial situation, intending to change the mortgage on my current house and possibly investing all or some of the lump sum I received.

 

 

I would like to continue banking with Smile and take advantage of your mortgage and investment services as I value your policies of ethical investment. However the oppressive penalty charges levied on my account over the last few months have caused me reluctance to involve myself further with Smile unless a compromise could be reached regarding my request that these charges be refunded and restoring my confidence in Smile's commitment to customer service and welfare. Banks such as Lloyds TSB have already altered their policies on unauthorised overdraft charges to reflect the current situation.

 

 

I am aware that you have applied a stay on the above court proceedings pending judgement on the Office of Fair Trading test case. I would respectfully draw your attention to the Master of the Rolls decision that all outstanding bank charges cases should not be automatically stayed. My understanding is that the Deputy Head of Civil Justice has written to all designated Civil Judges, inviting them to consider staying outstanding claims on an individual case by case basis as appropriate.

 

 

You may have been informed by now that I have made an application for the removal of the stay applied to this case. Based on my circumstances and the many successful applications for removal of stays on similar cases I am confident that this stay will be lifted

 

 

The charges currently stand at £585, plus interest and other costs incurred due to the County Court process.

 

I hope I'm not making myself sound like an arse with all this money stuff, we're not well off by any means, we couldn't sell our house in time before my husband started a new job in a different county so we remortgaged it to buy a new one and rented out the old one for a short time and have recently managed to sell it. I was hoping that the mention of the money might act as a little olive branch and tempt Smile to reconsider their position and just give me back my £585 because it's such a tiny amount to them.

 

What do you think? Will this letter weaken my case? Should I add 'Without Prejudice' to the top of the letter or will that make things worse?

[MamaKitty]

Could someone give me some advice about this please? All I really want to know is whether sending this letter to Smile will weaken my case.

[MamaKitty]

I've had a letter from the court! The case is being transferred from MCOL to my local court 'for that court to deal with the claimant's application to lift the stay'.

 

The paperwork says:

 

It is ordered that:

1. The filing of an allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfer orders otherwise.

 

And:

 

It is ordered that:

1. The claimant's letter stands as an application for leave to lift the stay.

2. No fee payable.

3. Transfer to Claimants home County Court.

 

Would I be right in being quite optimistic about my chances? If I'm reading it right, the court is sympathetic, especially dispensing with the AQ.

[caro]

I wouldn't raise your hopes too much MamaKitty. It is extremely rare to get stays lifted, and talk of lump sums does not make you sound destitute. You mention a tenant, who presumably paid rent, so I can't see that you are living entirely on benefits. It's not particularly unusual to dispense with the AQ, but you should check with the court whether or not you still need to pay an allocation fee, although you may not have to with the size of the claim.

 

I hope I'm wrong, but I think you should be prepared for this eventuality. There's info in the Bank Templates Library which may help you.

 

Apologies for not picking this up earlier.

[sequenci]

If you live with your husband then your income should be calculated as a joint entity. If he is on a low income he might be able to claim working tax credits.

[MamaKitty]

My application to remove the say has been rejected. It seems fairly black and white to me that if the only money going into my account is from benefits, and it's illegal for the bank to take away someone's benefit money, then surely they're in the wrong? It's all easy to prove, my statements are very clear that the only money going into my account is benefit money!

 

I'm going to have a look on all the guides etc and see if there is any way to appeal this decision.

 

Thank you Sequenci, but my husband earns a decent wage, enough for me to stay home full time with our babies anyway, but as much as he pays for everything, he doesn't give me 'pocket money' or any money to spend on myself, so my only income is benefits, which I usually end up spending on treats for the girls anyway!

[caro]

The point is that you are getting more than just benefits, and your family have income other than the money going into that account. I believe that to prove hardship you would need to prove that you lived solely on benefits, and that money was being taken by the bank that was the minimum requirement for you to live on.

 

You have already said that your husband earns a decent wage, and the fact that you are able to spend the benefits you receive on treats shows that they are not required for essential items to bring up your children.

 

When my children were tiny I saved the child benefit for them, but when we later went through a period of hardship, I could no longer do that as we needed the money to feed the children and try to cover our every day living expenses.

 

I think you should seriously consider whether to appeal this decision, because the judge has made a decision based on your application, which presumably included information on your family income, and you might find yourself subject to paying the banks costs should you press the matter further.