AC2007 V Bank of Scotland

[**Tilly**]

hi AC

 

have a look in these 2 links i think you will find them helpful

 

Dusary v Bank of Scotland(

 

 

 

 

 

 

 

MacBoy Vs. Halifax and Hello To the Group!

[AC2007]

Cheers Tilly, more reading for me

[**Tilly**]

your welcome and thankyou;-)

[MacBoy]

Best of luck wih your campaign, AC2007 We'll all help you in any way we can...

 

Mac

[AC2007]

Does anyone know of a template letter to reply to a bank (in Scotland) after they say they will not consider refunding charges over 6 years old. I have had a good look around the forums but can't find any.

As the amounts are so much and the fact that they go back over 12 years I dont want to make any mistakes.

 

Cheers & TIA

AC2007:)

[MacBoy]

AC2007

 

You need to establish first which jurisdiction you are going to make your entire claim. Are you in Scotland? As far as I am aware, the general consensus appears to be to claim in England whenever possible because of the seemingly easier regime on larger amounts.

 

HBOS have their Head Office in Halifax.

 

If you end up claiming in England then your next response should be something along the lines the one I showed you in my thread (adapted to suit your case). At this stage you are not making your claim for the money, but informing them that they are failing to carry out their responsibilities under the Data Protection Act.

 

Are you sure you should be itemising your charges at this stage if you are still missing information? One thing you certainly should not be doing at this stage is mentioning statutory (court) interest in any communication.

 

Regards

Mac

[AC2007]

Macboy,

I have all the information I need so I am actually making a claim for charges going back over 12 years, I want to make sure that I word the letter correctly as my next move will probably be to appoint a lawyer as the amount involved is too large for summary action.

I have mentioned interest in my letter to them already (see above) was this a mistake?

[MacBoy]

OK I see so you're not seeking statements - that's good

 

You should only itemise the fees they have charged, plus any interest you are claiming from them as part of the conduct of the account. Judicial interest (i.e. that which you would expect the Court to award you in the event of a successful claim) should only be calculated in and at the time of your Court claim.

 

However you've done it now, so not so sure that you can rewind. I'd have to defer to someone else about what could be done in this situation...

SSL/Tilly? Any ideas here?

 

And any particular reason you're planning to claim in Scotland?

[AC2007]

I am based in Scotland as are the two banks i am going after.

[MacBoy]

HBOS is based in Halifax (see my note above). It's obviously up to you where you choose to claim however!

[**Tilly**]

hi AC

send your letter before action but only with your charges on your spready,also put an amended prelim in with it

also with regards to you claiming in scotland as i mentioned

before you can use an english address to claim through the

english courts

[AC2007]

If I need to use a lawyer would it not be better to claim near my home, because of the amount I need to go for ordinary action.

[AC2007]

UPDATE 03/12/07

 

Personal Accounts

 

About to post LBA

 

LETTER BEFORE ACTION

 

Dear Sir or Madam,

 

 

Sort Code XXXXXX Account # XXXXXX

Sort Code XXXXXX Account # XXXXXX

 

 

I am somewhat bewildered by your letter of 22nd November stating that you will not look into refunding charges from over 6 years ago as my understanding is that under the current law found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation.

A claim for breach of contract generally becomes enforceable when there is a concurrence of liability (i.e. the breach) and actual loss. The pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (e.g. where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge.

As I did not know until the publicity this year regarding the charges then it can be assumed that I did not become aware of a breach until that time.

 

I understand that the regime of fees which you have applied to my accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £5,675.00 in charges as detailed in the full schedule which was sent to you with my previous letter.

 

I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

 

Yours faithfully,

AC2007

 

Have I missed anything or anyinput would be gratefully appreciated.

 

 

 

 

NO REPLY to business accounts should I just go straight to LBA as it is over 14 days now?

[**Tilly**]

hi AC

if you haven,t had a reply then yes if their 14 days are up

send your letter berfore action stick to your timescales

not there,s:D

your letter before action regarding your other account look,s

fine

[AC2007]

Just looking for some clarity for this and my other thread about Clydesdale before sending off 4 LBA's:

 

On the personal accounts, get the LBA in to them regardless of length of time I am going back, without interest and then I will have to wait on the outcome of the test case. ( I will have to send them an ammended Prelim Letter)

 

On the business accounts, get the LBA into them again regardless of length of time I am going back, without interest and then contact the FOS after 14 days. ( I will have to send them an ammended Prelim Letter)

 

 

Nearly there.

 

Then ker-ching:p

[**Tilly**]

hi AC

go send your letters before action

let them know you mean business

[AC2007]

UPDATE 04/12/07

 

LBA & Ameded Prelim letter sent with no mention of interest, if I haven't heard from them by 18/12/07 I will inform the FSO.

 

 

LETTER BEFORE ACTION

 

 

Dear Sir or Madam,

 

 

Sort Code xxxxxx Account # xxxxxxxx

Sort Code xxxxxx Account # xxxxxxxx

 

 

 

I am somewhat bewildered by your letter of 22nd November stating that you will not look into refunding charges from over 6 years ago as my understanding is that under the current law found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation.

A claim for breach of contract generally becomes enforceable when there is a concurrence of liability (i.e. the breach) and actual loss. The pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (e.g. where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge.

As I did not know until the publicity this year regarding the charges then it can be assumed that I did not become aware of a breach until that time.

 

I understand that the regime of fees which you have applied to my accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £5,675.00 in charges as detailed in the full schedule which was sent to you with my previous letter. Amended copy enclosed.

 

I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

 

Yours faithfully,

AC2007

[AC2007]

UPDATE 04/12/07 BUSINESS ACCOUNTS

 

LBA & Ameded Prelim letter sent with no mention of interest, if I haven't heard from them by 18/12/07 I will inform the FSO.

LETTER BEFORE ACTION

Dear Sir or Madam,

Sort Code xxxxxx Account # xxxxxxxx

Sort Code xxxxxx Account # xxxxxxxx

I am somewhat disappointed that you have not replied to my letter of 14th November and therefore must let you know that it is now my intention to take the matter further.

I understand that the regime of fees which you have applied to my business accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I calculate that you have taken £12,849.00 as detailed in the full schedule which was sent to you with my previous letter. Amended copy enclosed.

I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice.

 

Yours faithfully,

AC2007

[AC2007]

UPDATE 19/12/07

 

 

Letter sent to FOS as there has still been no reply from BOS.

 

Dear Sir or Madam,

 

I would like to register a complaint against Bank of Scotland regarding bank charges on two business accounts that I have held with them.

 

I first became aware that the charges which had been applied to my business accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law back in February 2007 and started to put together a claim using my old statements as far back as I could. I then wrote to the bank requesting copies of missing statements for both accounts and further information about previous accounts.

I have enclosed a copy of the paper trail of communication since.

Item 1

10/08/07: Letter to bank requesting information.

Item 2

21/09/07: Letter to bank as they had not answered my first letter.

Item 3

14/11/07: Letter to bank requesting repayment of charges (this letter included interest which I now realise I should not have included)

Item 4

03/12/07: Letter to bank again requesting repayment of charges as they have still not replied to me at all even after 5 months. (Amended preliminary letter enclosed).

Item 5

03/12/07: Amended preliminary letter.

I am now asking for your help in resolving this issue as it has now been going on for over 5 months and I believe that the bank are just ignoring me in the hope that I will just go away. All communications have been sent recorded delivery, so it is not as if they haven’t received the letters.

If you need any further information I can be contacted on XXX XXX XXXXX and I look forward to your assistance in resolving this matter.

 

Yours faithfully,

AC2007

 

I await their reply;)

[AC2007]

UPDATE 14/01/08

 

Letter received from FOS:-)

 

Dear AC,

 

Acknowledgement

 

Thank you for your correspondence, which has been received safely.

 

We are currently receiving very high volumes of enquiries and we will provide you with a full response as soon as we can.

 

If you need to contact us in the meantime, please quote reference number ********

 

 

 

Now it is just a waiting game.

[zootscoot]

It'll be worth it in the end!

 

Good luck

[AC2007]

I hope so.

[AC2007]

UPDATE 19/01/08

 

Letter received from FOS as follows;

 

16 January 2008

 

Dear AC2007

Your complaint about Bank of Scotland plc

Thank you for contacting us. I enclose our leaflet which explains how we can help to resolve complaints. As you will see, before we can consider a complaint the business concerned must have been given a chance to put things right.

I have therefore written to the business to let them know that you have a complaint, the business should now contact you for details of the complaint, if they do not already have them. If you do not hear from them within the next few days after receiving this letter, you may wish to contact them at the address given below, mentioning that we have already written to them. They should issue a final response in writing within 8 weeks of the date they receive the complaint.

For your information the business's address is:

Mr Hughes

Bank of Scotland pic

Customer Relations

Trinity Road

Halifax

West Yorks

HX1 2RG

On receipt of the business's final response, if you feel they have not put things right for you, or, alternatively, if you have not heard from them after those 8 weeks, please complete the enclosed complaint form, and send it to us along with any supporting documentation.

I have returned any papers you may have sent us in case you need to refer to them.

We will take no further action unless you contact us again.

Yours sincerely

 

 

What I can’t understand is that the bank HAVE had the chance to respond to the complaints, should I call the FOS on Monday and talk with the consultant handling my case as I have had a totally different response from the FOS regarding the Clydesdale Bank????

AC2007 V CB

[AC2007]

UPDATE 07/02/08

 

After speaking with the FOS on the phone they have decided that the BOS do in fact have a case to answer and have instigated an investigation.

Today I received an acknowledgement from the FOS that they have received all my paperwork and my completed complaints form.

Getting closer I hope.

[AC2007]

UPDATE 24/04/08

 

I received the following letter today before the High Court announcement.

 

17 April 2008

Dear AC2007

Your complaint about Bank of Scotland

I refer to our last letter of 14 February 2008 when colleagues advised that your complaint was being passed to a casework team for consideration of the issues raised.

As you may be aware, the Office of Fair Trading commenced legal action against the banks in July 2007 to seek clarification of the legal position concerning the levy of default or 'penalty' charges on bank accounts. Consequently, at that time, we felt it inappropriate to progress such complaints until the underlying legal issues were resolved.

However, more recently, the Financial Services Authority (FSA) undertook a review of the waiver it had provided to the banks concerning unauthorised overdraft charges complaints handling. At that time, the FSA decided that banks and building societies should, after all, continue to deal with complaints about default charges on business accounts. Accordingly, I am writing to let you know that I have now reviewed the file and considered your complaint. Having done so, however, I am afraid to say that it does not appear that we have power to deal with it.

This is because our rules say that, unless there are exceptional circumstances or if the bank does not object, we cannot consider a complaint which has been brought:

- more than six years after the event complained of; or

- (if later) more than three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he or she had cause for complaint.

In your case the event complained of is the levying of bank charges between 1993 and 1999 and it is understood both accounts were closed subsequently. You first complained to Bank of Scotland in November 2007 and to us in January 2008. So, in regards to the charges incurred before 1999, it is apparent that you brought the complaint more than six years after the events which gave rise to the complaint.

It follows that the Financial Ombudsman Service is unable to consider your complaint regarding the charges, as it was made outside the relevant time limits.

 

Whilst I am aware that there is an argument to say that with the test case being brought by the Office of Fair Trading (OFT) may result in the High Court finding that the banks have concealed the cost of their charges and that in these circumstances the statute of limitations regarding the six year time limit will no longer apply. However, regardless of any court finding, I regret to say that our rules still say that we cannot consider a complaint regarding events more than six years ago. This rule is not governed by any court finding or the statute of limitations, but by the Financial Services and Markets Act 2000, with which we are required to comply.

I appreciate that my assessment is likely to come as a disappointment to you; I nevertheless hope that my explanation is helpful.

You are entitled to a review of my assessment by an Ombudsman. However, in terms of the position with the time limits, an Ombudsman is unlikely to alter my view unless you are able to provide evidence that there were exceptional circumstances (simply being unaware of the deadlines is not usually considered an exceptional circumstance) as to why you did not bring your complaint earlier. If you require a review please write to me by 1 May 2008 outlining the reasons why.

In closing, I would add that any rights you may have to take legal action against the bank have not been affected by our consideration of his complaint. If I do not hear from you by 1 May 2008 I will assume that you do not wish to take the matter further with us, and I will close my file.

However, if you do not agree with my conclusion please come back to me by that date with your reasons why, along with any further evidence to support your argument.

 

 

How should I handle if from here?

 

 

GREAT RESULT TODAY:D :D