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

[Ocelot0411]

Actually after calming down from the above rant, I don't suppose it matters as if you have proof of postage and the address is correct, service is deemed to be 2 days after postage so I guess its a bit academic, but nonetheless outrageous behaviour.

[orfoster]

Documents were signed for yesterday so all good.

 

I have also served a s10 DPA notice on Lloyds while the dispute is ongoing I have requested they stop processing my information.

 

I now have my Directions Questionnaire, is it worth using my right to reply to their defence at all?

[Ocelot0411]

Ulimately up to you but I would, just so you are making yourself absolutely clear.

[orfoster]

Ulimately up to you but I would, just so you are making yourself absolutely clear.

 

How would you formulate it? Is it just basically a letter reiterating the claim or would I rebut their defence point by point?

[Guest]

Hello Ford,

....

 

I haven't filed proof of service, I didn't know I had to, I thought only if they said they hadn't received them or if I was applying for judgement in default.

 

hi

according to that practice direction 7E, yes need to if particulars are separate and was MCOL?

[orfoster]

hi

according to that practice direction 7E, yes need to if particulars are separate and was MCOL?

 

I've now read through all the court rules and I e-mailed the N215 as required to the court this morning.

 

Cheers for pointing this out. When I did some small claims years ago I didn't have to do this, nor did I know that when it gets transferred that I have to file it again with the POCs to the local court.

[orfoster]

Hi,

Have just filed my N180 DQ by email to the court, no fee attached. Just want to double check, claim is £1482 so less than £1500 but fee is £70 which takes it over £1500.

When calculating whether a fee has to be paid for DQ does it include the Court issue fee?

Cheers

[AndyOrch]

Hi,

Have just filed my N180 DQ by email to the court, no fee attached. Just want to double check, claim is £1482 so less than £1500 but fee is £70 which takes it over £1500.

When calculating whether a fee has to be paid for DQ does it include the Court issue fee?

Cheers

 

No

[orfoster]

Ok I filled my DQ on 30.8.13 but I had a letter today with an order, the order requires me to send my DQ, I called them and they haven't received it, luckily I sent it by e-mail so have a copy of that and the acknowledgement I received back from MCOL (I had sent it to the wrong address) but nowhere does it mention another specific address until this order.

 

The order requires me to submit my DQ before 27 Sept (I did it yesterday).

 

So it mentions I can have the order set aside but I must make an application by 27th and include a fee (where appropriate, what would the fee be?). Should I do this or just let them process it now?

 

Noting that the other side failed to send me a copy of their DQ.....

 

Cheers

 

O

[orfoster]

Hello everyone,

 

I have an old credit card which had £88 of charges put on it back in 2008. The balance now stands at around £200.

 

Are people still reclaiming compounded interest on claims?

 

Lloyds have so far responded refusing to pay my charges, if I claim compounded interest at 27.95% (cash advance) it would be £343.

 

I am currently reading more and more into the idea but just want to know if anyone is still doing this?

 

Cheers

[ims21]

Yes they are.

 

Typically you would use the purchase rate for the card (not the cash advance rate).

 

However, if going for interest in restitution you can use a higher nominal rate.

[orfoster]

Hi,

 

Thanks for the reply - Lloyds are saying that they have undertaken "independent" investigation and that their charges don't cover their costs (LOL), does this damage a claim or is it standard?

 

Here are the POC's I plan on submitting;

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around XXXXX, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no XXXXXXX (The Account).

 

2. “The Agreement” essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. The default charges were applied in accordance with the standard terms of The Agreement which were:

a. A penalty payable on breach of contract and thus unenforceable: and or

b. An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

8. The standard Terms of the Agreement in substance provided as follows:

a. The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

b. The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

c. The Claimant was to pay the minimum payment of 2% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

d. In addition the Defendant was entitled to charge fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12.00.

 

Penalty

9. The Charges were payable on breach of contract by the Claimant.

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

12. At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

i. The terms relating to Charges were standard terms; they would not be individually negotiated.

ii. The Charges were a penalty for breach of contract.

iii. The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

iv. Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

v. As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

vi. As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

vii. In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

a. The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

b. The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £84 between 17 June 2008 and 20 April 2009. Particulars appear from Schedule 2.

 

18. On 23 September 2013 the Claimant demanded repayment of the sums wrongly applied. The Defendant has not repaid them or any of them.

 

Compound Interest

 

19. The Claimant is aware and respects that the court presently has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the instant case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied. The Claimants case for compound interest is not reliant on any implied contractual term.

 

20. The recent case Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v Her Majesty's Commissioners of Inland Revenue and another (Appellants) 18th July 2007 raises the issue of Compound Interest and the Claimant submits that, by virtue of the development of the law recently established in this referenced case, it is open to the court to award compound interest in the Claimants instant case.

 

21. The Claimant also respectfully requests that his claim for compound interest be viewed in the context of the instant claim rather than in isolation, and with full regard for the seriousness of the Defendant’s misdemeanours which have led to the Defendant profiting unlawfully from the Claimant’s account defaults. It is entirely inequitable that the Defendant should have deprived the Claimant of the use of his monies for this length of time without repaying it with interest at the rate which it charges the Claimant in equivalent circumstances; monies which it is in the business of re-lending at the same commercial rate of interest and which will only restore the Defendant to the position where it had not received any benefit from having had use of the Claimant’s money. It is the Claimant’s case that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the charges and simple interest at the statutory rate. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

 

22. And the Claimant claims:

 

a. A declaration that the sums totalling £84 have wrongly been applied to the Account

b. Payment of the said sum of £84 and;

c. Contractual compound interest at an annual rate 27.95% compounded monthly from the date of each individual charge to 15 October 2013 of £259.53 and then continuing to accrue at the same rate from 15 October 2013 to the date of judgement or earlier settlement.

d. Court fees of £50 plus any further Court fees.

 

I believe that the facts stated in these particulars, comprising of x pages, are true.

 

 

Dated

 

Signed

 

 

 

Schedule 1

 

 

 

 

 

From 2007 Terms and conditions

 

KEY FINANCIAL INFORMATION

 

1. CREDIT LIMIT

We will set a credit limit and tell you what it is after we have opened your account. We may change it in the future. We’ll give you the new credit limit in writing.

 

2. YOUR PAYMENTS

2.1 You must make a minimum payment by the payment date every month of:

• 2% of the balance shown in your statement (minimum £5, or the full balance if less than £5); or, if it is more

• the total of interest and the Payment Protection Cover premium shown in your statement.

You can always pay more if you want to.

2.2 To begin with your payment date will be about 25 days after the statement date but we may change it under condition 17. Your statement will show the payment date and the minimum payment.

 

KEY INFORMATION

 

 

 

8. CHARGES

8.1 For letting you continue to use your card (if we do let you) despite your having broken these conditions, we will

charge you:

• £12 if you do not make at least your minimum payment by the payment date;

• £12 each time you exceed your credit limit;

• £12 each time a direct debit, cheque or other payment order you have given us is not accepted when we

present it for payment.

We will also charge reasonable costs and expenses resulting from you breaking these conditions.

 

13.1 You must not go over your credit limit. When we work out the credit available on your account to authorise new Transactions, we include authorisations for Transactions we have already given but which have not yet been applied to your account.

 

14. PAYMENTS

14.1 You must make all payments on time. You won’t break this term if a payment is late because we’ve failed to process it as soon as we get it. A payment is shown on your account and reduces your outstanding balance when it clears. We’ll give you guidance on making payments to reach us on time and on the clearing times for cheque payments and automated payments.

 

 

I've hopefully covered the interest issue enough following reading threads on the issue, let me know what you think? It seems pretty standard. The Compound Interest is from a claim which seems to have succeeded before.

 

Cheers

[orfoster]

I've heard back from the ICO this morning in relation to the unfair processing of information, that Lloyds applied a default way after they should have done, they have found it likely that this is unfair.....a couple of questions;

 

1. Is it worth amending my claim to include a DPA breach?

2. Should I lodge a separate claim?

3. The ICO have written to Lloyds asking them to put it right, should I also write and suggest they settle claim?

 

Cheers

[orfoster]

Anything wrong with issuing this on MCOL and submitting detailed particulars as above?

[AndyOrch]

It is possible to add to the existing claim for this point to be considered.

 

Regards

 

Andy

[orfoster]

Thanks Andy,

I'm having a look at the Rules & Practice Directions now, how do I do that?

Cheers

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17

[orfoster]

Thanks Andy,

 

The Court tell me I need to complete an N244 form and enclose £45 fee. The file is currently with the local DJ for directions.

 

I propose sending the below to SCM Solicitors who are acting for Lloyds in order to see if they agree or even want to settle. Does this look ok?

 

Cheers

 

 

Dear Sirs,

 

I write in relation to the above claim which I note you are acting on for your client Lloyds TSB Bank Plc.

 

The matter subject to this claim relates to the unfair treatment of your client in its handling of matters including the way in which my data has been processed and shared with third parties, as a result a complaint was made to the Information Commissioner.

 

It is clear now and it has been clarified to your client that the Information Commissioner agrees that it is unlikely that your client has complied with the Data Protection Act in this regard.

 

As this matter relates to the ongoing claim and that this information has come to light I seek your permission to approach the Court to make an amendment to the Statement of Case in accordance with Practice Direction 17.

 

Alternatively I remain open to an offer of settlement in this matter should your client so wish.

 

If I fail to seek agreement to amend the claim I will of course make an application to the Court.

 

I would be grateful if you could provide a response to this request within 14 days.

[AndyOrch]

Thats fine orfoster.

[orfoster]

Ok I sent the letter off to their solicitors. Thanks Andy for your guidance.

 

I've now received the orders of the judge a few key points;

1. Hearing fee of £110 to be paid by 29th October.

2. The judge feels this claim could be settled by mediation (is this standard or does the judge take a view on the case)

3. If I want to vary judgement I have 7 days from its date.

 

I wonder if this changes my strategy and as I see it I have a number of options;

a) Pay hearing fee and enter into mediation (don't know what I should do about amending claim) does small claims mediation stay the claim?

b) I don't wait and I make a request for the judge to include an amended statement of case due to new information coming to light (I want to increase the claim value from £1490 to maybe £2490 if thats accepted do I just pay the difference between the fee I've paid and the next threshold?)

c) I pay the hearing fee and wait 14 days and then submit application to the court for changes.

 

I'm not really sure which to go for? Is mediation worth it? My view is really that I've tried resolving this and I continue to say I'm open to offers, I don't know if mediation would resolve it.

 

Does anyone have any view?

 

Thanks as always.

[orfoster]

Hello all,

 

I have today received permission from SCM Solicitors that they have no objection to an amendment of claim.

 

I am in the process of drafting the amended POC's and am unsure what the ICO means in the outcome letter see here [ATTACH=CONFIG]47106[/ATTACH]

 

On the 2nd page it talks about that they should have filed a default 3-6 months after the last payment, I'm just getting confused about what this means, do they mean after I started missing my contractual payments (i.e. at the start) or after the debt is settled or the arrangement ends? I just need to be clear and work out what s of DPA I refer to.

 

Thanks

[AndyOrch]

"On the 2nd page it talks about that they should have filed a default 3-6 months after the last payment,"

 

The last full contractual payment which caused the default

[orfoster]

Claim issued and Lloyds have until 2 November to respond. I had a letter last Wednesday from SCM Solicitors telling me to withdraw as they'll apply for costs and kindly including a pre-filled in form to do so (they are so thoughtful) but they haven't acknowledged the claim yet!

Detailed POC's being sent on 31st by SD.

 

I've been reading the recent judgement re Santander and CC Charges! What happened there?!

 

Does anyone have the bundle for CC charges at all?

 

Cheers

[orfoster]

I received a letter today from SCM - "we will consider settlement and mediation when we are in receipt of your amended POc's"

 

So I've added this, what do people think? It hasn't gone off yet because I want to make sure it contains all it needs to. I was gonna send them off to SCM before making the application to the court to give them 7 days to consider settlement. Is there anything wrong with that?

 

6. The Defendant marked the Claimants credit file in default on 24 December 2010 despite the Defendant alleging that a breach occurred a significant amount of time before, making the default marker inaccurate and unfair due to the added amount of time it will be present on the Claimants credit file.

7. The claimant submitted a complaint to the Information Commissioner, who on the 10 October 2013 wrote to the claimant confirming that it is unlikely the Defendant complied with requirements under the Data Protection Act in relation to the First principle, by placing a “default” on the account in December 2010 this placed the Claimant in a worse position than if no attempt to pay had been made. The Banking Conduct of Business Regulations (BCOB) 2009 which requires inter alia that firms treat their customers fairly (R.5.1.1) and further the Data Protection Act 1998 requires that individuals data is processed fairly in accordance with the act.

8. The claimant filed a notice in accordance with s10 Data Protection Act 1998 to which for all intents and purposes it appears the Defendant has partly complied with, although the Defendant did not communicate a response to the Claimant in the matter.

9. It is claimed that the Defendant was aware of the Information Commissioner Technical Guidance which describes the way in which “default” markers should be processed, further the Claimant explained this clearly to the Defendant on numerous occasions.

10. The Claimant further understands that on or around 10 October 2013 the Information Commissioner advised the Defendant of its concerns, the Claimant has not received any correspondence from the Defendant on the issue.

7.11. The Claimant requests damages in accordance with s13 of the Data Protection Act 1998 for damages caused by the aforementioned breach.

[citizenB]

Looks good to me.

 

I will ask andyorch to advise on your "plan", although I personally see nothing wrong in this