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?

[Castlebest]

If all of the money paid into your account is from government benefit payments they are breaching the statutory benefit regulations which basically say the money paid into your account belongs to the government until you use it... they are taking the governments money

 

Read this thread

 

http://www.consumeractiongroup.co.uk/forum/general-debt/36790-bank-taking-your-benefits.html

 

The test case shouldn't affect you at all recovering benefit payments.

 

pete

[MamaKitty]

I think the trouble is that as much as my only income is benefits, my husband earns a comfortable wage and pays all the bills, so I can't really claim hardship. But the fact stands that they're taking my benefit money, which must count for something? I put that in my N244 application anyway. I'm guessing I just need to wait for a response from the court to find out if my application is successful.

 

Is it worth me sending this letter or will it weaken my case?

[Castlebest]

If they are taking your benifits they are breaching the social security act it has nothing to do with the test case.

 

pete

[slick132]

Hi Mama,

 

Based on my reading of your circs's, the Court is unlikely to lift your stay.

 

The bank won't budge unless they have to. But , there's no harm in sending your letter. May I suggest an amendment:-

 

" I am aware that you have applied a stay on the above court proceedings "

Change to

" I am aware that the court proceedings have been stayed "

Good luck, Slick

[MamaKitty]

The court don't know about the house money, I just wrote in my N244 that my only income is from benefits, which is true.

 

I think I'll send the letter, thank you for your help. I just really need to get that money back and would rather not wait! It's really a tiny amount by Smile's standards. I really hope it entices them to just pay up!

[slick132]

MamaK,

 

Your letter looks fine - don't use Without Prejudice. No need as your letter shows your willingness to negotiate without going to court.

 

When you mention the amount you're claiming, confirm an up to date figure in case they feel like paying, maybe like this:-

 

The charges currently stand at £585, s.69 interest to date of £xx.xx and Court fees paid of £xxx.xx, making a total of £xxx.xx with interest rising at the rate of xx pence per day.

Slick

[MamaKitty]

Thank you so much, Slick, your suggestions and encouragement are much appreciated!

[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.

[zootscoot]

MCOL dispesensed with allocation questionnaires in all bank charge claims some time ago now, although your local court may ask for one.

 

Also MCOL has stated that they will transfer all cases to the local court where this has been requested so I don't think you can read too much into these actions.

 

Its all down to your local court now.

 

Best of luck

 

Zoot

[MamaKitty]

Damnit! I had a successful claim against Barclays a few months ago and got really excited when I saw that letter! Thank you for bringing me down to earth though! Hopefully I'll still get a positive reaction to the compromise letter to Smile.

[slick132]

Hi MamaK,

 

To be honest, the letter is your best hope at the mo (I assume you sent it), as the case is quite likely to be reviewd and then stayed.

 

Slick

[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.

[zootscoot]

It is not illegal for them to take money from benefits.

 

Your best hope for a speedy resolution is go through the FOS using the hardship route.

 

Best wishes

 

Zoot