Lloyds claim - **WON _ Amazing win based on UTCCR's**

[orfoster]

Hey,

 

Can anyone tell me the rule on Direct Debits. My friend has a loan with Lloyds but is currently out of work so is unable to make the payments. He has tried to cancel the Direct Debit and they have told him that he can't do this. Im sure this is wrong and as long as he gives them notice they must do this, can someone clarify this issue for me??

[daveandmel]

As far as i am aware he is entitled to the cancel the direct debit. By doing so he is not telling them that will not be paying the payment, just changing the way in which he wishes to pay it. Of course they probably see it as a way to still get there money!!!

[Bookworm]

Tell him to join online banking, then he can cancel it himself whether they like it or not, cheeky sods!

[orfoster]

Surely though they must cancel it if he requests so? I have tried looking into this abit on the banking code but can't find it anywhere. Ok i will tell him to sign up to online banking. Thanks guys.

[lucid]

Yes I'm sure they must cancel if he's requested them. At least according to the info here and the Financial Ombudsman info on it is here . Seems like they're trying to play the we know better than you game again.

 

Your friend may find that if he phones again and speaks to a different eprson he won't have any problems, but just in case get him to have copies of the above info infront of him to quote if he needs to.

 

Lucid

[tim2718281]

As far as i am aware he is entitled to the cancel the direct debit. By doing so he is not telling them that will not be paying the payment, just changing the way in which he wishes to pay it. Of course they probably see it as a way to still get there money!!!

 

Of course he can cancel any instruction he has given to his bank ... a Direct Debit is simply an instruction to the bank to pay amounts on request.

 

However, there is another kind of payment, called a "continuous authority", to do with debit cards and credit cards.

 

Some banks seem to think these cannot be cancelled. Obviously they are wrong ... the notion that you have no right to control the banks' paying out your money is ridiculous, and not worth discussing.

 

Tim

[orfoster]

I am persuing a claim with a friend in work for Lloyds, don't have much experiance with Lloyds but am doing this all on her behalf when we reach the court stage. PRE LIM and LBA all sent off + COMPOUNDED CONTRACTUAL INTEREST which comes to £5497.74 those letters were sent by her and now she wants me to get all the court papers etc. I have prepared the Particulars of claim as below;

 

1. The Claimant has a Lloyds TSB Current Account: edited Sort Code: edited "the Account") with the Defendant. Which was opened on or around November 1987

 

 

2. The Accounts are governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

 

3. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied.

 

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

 

5. A list of the charges applied is attached to these particulars of claim “the Schedule”.

 

 

6. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

 

 

7. The Claimant thus contends that:

a) The charges debited to the Accounts:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) Further to 7.a), the charges debited to the Accounts are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss.

 

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

d) In the alternative to 7.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

 

8. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Accounts is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised overdraft rate of 29.8%.

 

d) A list of charges, interest calculated and rate used are attached to these Particulars of Claim.

 

 

9. Accordingly, the Claimant claims:

a) The return of the amounts debited between 30th March 2001 and 1st May 2007 in respect of charges in the sum of £2732.50

 

b) All applicable court fees.

 

 

d) Contractual interest at an annual 29.80% compounded daily from the date of each transaction to 20th June 2007 of £2765.24, as detailed in the list of charges attached hereto, and also interest at the same rate, from this date, up to the date of judgment or earlier payment, at a daily rate of £2.46.

 

e) Should the court find that this interest rate is not applicable, then in the alternative the Claimant claims interest pursuant to Section 69 of the County Court Act 1984 at the rate of 8% per annum calculated from the date of each transaction to 20th June 2007, which is £453.72 and also interest at the same rate until date of judgement or earlier payment at a daily rate of 69.84p.

 

I believe that the contents of these particulars of claim are true.

 

 

Signed: Date:

Claimant

 

Everything in orange are figures i've tried making sure are correct, do they all look ok?? Is there anything else I need to mention in partics of claim??

[orfoster]

How do you think these are for 'brief details of claim'? Do they look ok?

 

Claimant has had a contract with the Defendant, which is conducted according to its standard terms and conditions, since 2001. Claimant is claiming the return of money taken by the defendant in the way of charges over the last six years, plus the interest it has levied on these charges. The Defendant's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contract Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. Claimant has repeatedly asked the defendant to justify its charges but it has declined to do so. The claimant claims contractual interest (compounded) at a rate of 29.80% per anum from March 2001 to June 2007 under the principal of mutuality and reciprocity and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.46.

 

[Michael Browne]

Brief details of claim should be just that. ie something like:

Money claim for return of penalty charges applied to the Claimants bank account by the Defendant

So anything mentioned here should be put in the POC's such as

Claimant has repeatedly asked the defendant to justify its charges but it has declined to do so.

also in the POC's you say a/c was opened Nov 2005 but in brief details claim charges from 2001?

[jonah444]

hi

 

Just thought I let you know about a similar incident I had with HSBC, god bless them. When I wanted to cancel my Standing Order with them, which was to pay a loan also with them, I couldn't neither on the Phone, in the branch or online. When I asked why not, they siad it was in the T&C's of loan agreement I signed, I thought b*****s was it and checked to be sure, all the time I am clocked up £35 for each returned SO.

 

When I told them they putting me in more financial difficulty by not canceling it they kept saying T&C's. I asked where and because it was not there, they changed their tune to say it was part of the banks policy.

 

I stated I did not sign a policy but a set of T&C's, I even took it to my local MP for all the good that did.

 

Has any one else had anything like this, needless to say we are waiting for hearing date against them.

[orfoster]

Michael, thanks for your reply. sorry the orange text are things i need to double check as am uncertain when the acc was opened. Do the parts look ok? she is claiming compounded interest.I heard there was now an argument of 'fairness and balance' have i done it correctly?

[tjinuk]

Hi

 

Just wanted to say that its not wise to put actual sort codes and account numbers on here...go back to that message and edit that part...just replace with a xxxx....i think its better to be safe than sorry.

 

Tracie

[MARTIN3030]

Details edited.

Thanks for bringing this up.

[redeyedamo666]

I'm not sure but that daily rate of 69.84 looks high. Granted my claim is only half the size, but I calculated my daily rate to be around 30p???

[orfoster]

Oh god thanks for that guys I didn't realise I had left the account details on here!! Thats what I am unsure about if the daily rate is correct. If I am unsure I can always leave out the daily rate can't i?

[nicsussex]

I'm not sure but that daily rate of 69.84 looks high. Granted my claim is only half the size, but I calculated my daily rate to be around 30p???

 

and to be fair his daily rate is just over twice what you are claiming which would make sense.

[nicsussex]

That said it comes out closer to 60p on my reckoning but shouldn't interfere with the claim

[GuidoT]

You should be aware of this:

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/97691-contractual-interest-precedent-lost.html?highlight=contractual+lost

 

I would not be claiming CI if it potentially puts you on the fast track where you have exposure to the other sides costs.

 

If you are claiming CI, your claim will be a drawn out process as they do not settle quickly, mine has taken 7 months and I have still not received the cash, but I just received judgement for the full sum.

 

If claiming CI ideally you should attempt to by win through obtaining a strike out. If you want to see how I went about it, see here:

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/47207-guido-t-lloyds-tsb.html

 

In view of the above it is important that you file your claim at a court that is issuing the New Strategy Order or Abuse of Process Orders.

 

Lloyds will defend CI claims in court.

[orfoster]

Many thanks for your post Guido, I am reading your thread now. So do you think I should rethink claiming contractual interest??

 

Lloyds are defending CI claims in court?? Have they done this and won yet? Gosh its not as simple as it was this time last year. Taunton County Court seem alot better as I know someone in the court who has said they are getting annoyed with the banks and how they are dealing with things. Are people still claiming CI and winning at the moment?

[GuidoT]

Yes - rethink.

 

On a few occasions I have seen claimants CI and only coming out with SI. I emphasise only a few occasions as most claims do not make it to court.

 

When you saying winning, on the basis of the banks paying CI then yes we are winning, but on the basis of obtaining judgements that include CI then no.

 

If you decide to claim CI, then post up again and I can give you the locations of some courts that are more likely to issue the new strategy order or an abuse of process order.

[orfoster]

Ok I see, I have added into the particulars of claim that if the court finds CI unaccaceptable then SI can be awarded.

 

I will continue claiming CI and see where we go. It does take the claim just over £5000 but this is mostly interest so doesn't it mean it will go to small claims track???

[GuidoT]

The £5K is not a hard and fast rule for allocation. If a case is particularly complex for say £2K, it could get allocated to the fast track and vice-versa.

 

Normally for the purpose of allocation SI should be excluded when considering claim value, however the subject of CI is a grey area.

 

If you get AQ150, then use these words in section D:

 

'The claim is for £x, plus interest of £x, thus £x. Pursuant to the Civil Procedure Rules Part 26.8(2) (b) interest should be excluded when deciding a track for the claim, therefore this claim should be allocated to the small claims track.'

[orfoster]

Ok I understand that now. So I could add that into the AQ from if i get that type.

 

Thanks for your help. I can see Lloyds are being a pain but I don't see it reaching a court room but will prepare either way.

[redeyedamo666]

and to be fair his daily rate is just over twice what you are claiming which would make sense.

 

Sorry, I misread it, thought it said £69.84!!!!

[orfoster]

lol sorry guys. I did use the spreadsheet etc and just hoped it was correct. I am sure now it is.

 

Right off we go with another prelim telling about the interest change. I am just preparing it all first.

 

Here is a copy of the letter I am sending to tell them about the change;

 

I previously have written to you on the 5th June 2007, to date I have had no response

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 include compound interest at Lloyds TSB plc’s excess overdraft fee rate of 29.8%. I am applying this rate of interest to the monies that Lloyds TSB plc 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 £2732.50 at today’s date, on which I have calculated interest due (to date) of £2760.75, bringing my total claim to £5493.25. I have enclosed an updated schedule of the figures for your information.

 

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 Bank plc 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 plc, 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 plc 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 plc has always concealed the fact that its charges are unjustifiable and unlawful.

 

Further, I will faver 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 plc to operate lawfully.

 

Please note that I require unconditional repayment in full of £5493.25 within the next 10 days in order to conclude this matter, failing which I will be proceeding with a court claim without further notice to you. In view of the costs involved for both parties I hope that Lloyds TSB plc will decide to settle my claim before that stage becomes necessary