GDB-V-LloydsTSB

[dave&sueb]

It has occured to me that if like me, people have had letters from the LloydsTSB or any other bank for that matter that read along the lines of "we have paid your instructions today but this has resulted in your account being in excess of agreed....blah

Then surely, this is 'constructive charging'

The bank is in ultimate control of debits from your account.....fact (apart from perhaps a cheque used with guarantee card)

It follows therefore, that an account can only ever be overdrawn or over limit in the first place if the bank allows it! starting the snowball !!

In allowing a payment, the bank are deliberately allowing you to go over limit etc.

There could be an argument legally, that a decision to allow a debit which then takes your account over limit etc. Is a deliberate act on the part of the bank to apply the subsequent charges since to bounce the charge would prevent the situation.

Just a thought

[dave&sueb]

Hi,

I have spent hours reviewing the various letters and threads available on this and other sites. I have compiled my initial claim letter taking the best bits from accross the board. As far as I can tell, I have covered every eventuality in this letter and thought I would paste it here for other users to copy.

 

If I have messed it up in any way, could someone tell me as I am posting it tomorrow (monday) (sometimes you can't see your own mistakes!!) :grin:

 

Senior Manager

Customer Care

Lloyds TSB Bank PLC

125 Colmore Row

Birmingham

B3 3SF

Dear Sir/Madam,

 

Penalties and/or unfair charges – request for refund for Mr ************. Sort Code, **-**-**. A/C No. ********

I have recently become aware that the tariff of charges which you have been applying to my account in relation to direct debit / standing order refusals, returning cheques and exceeding overdraft limits etc. are extravagant and unconscionable in comparison with the greatest loss which could conceivably be proved to have followed from the breach and are in fact, unfair penalties and unlawful at Common Law, Statute and recent Consumer Regulations.

 

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.

 

Your bank imposes charges in accordance with its terms and conditions of contract.

Such contractual terms allow for a charge to be levied upon the party committing the breach. However, those terms and conditions are subject to common law and the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR). Indeed, the UTCCR takes precedence over any contractual term where the court finds a term to be ‘unfair and/or unlawful’. The sum charged, must reflect actual costs incurred (liquidated damages) and not exceed damages the bank suffered due to the breach of contract, otherwise it becomes a penalty, which is unenforceable by the courts. The court can then treat that term of contract as having no legal effect; any charges levied under such an ‘unfair term’ therefore become unrecoverable. Therefore, contrary to the UTCCR 1999 (SI. 1999/2083), your charges appear to represent an unfair term of contract. My account falls within the ambit of Regulation 5 of the UTCCR 1999 as I am a consumer. Your charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair –

1. Terms which have the object of effect of –

(e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

 

0n 26 July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the account holder for breach of contract'.

 

As you are aware, the courts will only award (in a non-negotiated consumer contract) a sum to reimburse actual loss. Your charges do not reflect actual loss in relation to my account. Rather, they represent a disproportionate penalty and are widely recognised as being a deceptive means of profiteering under the guise of a legitimate charge, a major percentage of which is earmarked to subsidise the bank's global debt recovery costs and lending losses. There is parliamentary evidence for this assertion.

 

I would draw your attention to evidence given by the UK banks to the House of Commons Treasury Committee on how bank charges were calculated they said:

 

"[bank charges] are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (House of Commons, 2nd report, 25 January 2005, paragraph 50).

 

Accordingly,

· your charges do not reflect the actual liquidated loss in my case since, on refusing a payment from my account on the basis of insufficient funds or that a payment would exceed any authorised borrowing limit, the only costs incurred by the bank, are in the automated generation of a letter and it’s subsequent postage cost, which I doubt incurs costs exceeding 50 pence to such an automated organisation.

· Given the evidence above, your charges are clearly an unlawful penalty designed to recover funds lost elsewhere within your organisation and for which I can not be held lawfully and fairly responsible as an individual. In addition, it is unfair and unlawful to require me to subsidise your global debt recovery costs and debt write-off.

· Your charges could alternatively be construed as being at a level designed to intimidate your customers into avoiding such breaches which could also present as an unfair term of contract.

· The ‘fee’ charged monthly and which is currently £7.00 should more than cover the day to day management of my account particularly in view of the fact that I use your automated ‘on-line’ services for most of my transactions and instructions. This fee is not therefore, in dispute.

 

In Conclusion

I include herewith, a summary of the charges and/or penalties together with overdraft interest unlawfully taken from me between 01July 2002 to 01June2006 which I request be repaid to me unconditionally within 7 days of receipt of this letter. The data has been extracted from online statements and therefore I don’t expect it to be incorrect.

No ‘negotiation’ will be acknowledged or entered into and all correspondence must be in writing to the address at the top of this letter which is the address you usually use for correspondence with me.

If a positive and unconditional response is not forthcoming I shall write again in 7 days re-iterating my claim in the form of a Letter Before Action at which point, I shall copy the letter to the OFT in the form of a complaint upon the basis that you have failed to comply with the Office Of Fair Trading direction of 5 April 2006 and are therefore not a "fit and proper person" to hold a consumer credit licence under the 1974 act. If you do not understand what this means please seek advice from your legal department.

If on day 14 from the date of this letter, full unconditional settlement has not been made, I shall regrettably begin court proceedings without further notice or correspondence. In that eventuality, I would require you to submit to court, financial detail showing the actual loss sustained by you in relation to each breach on my my account, together with a full financial breakdown revealing how much income is generated from your bank ‘charges’, as against the cost of administering my dishonoured transactions. Additionally, my claim will include interest accrued on each penalty at 8% from the date of the penalty in line with the above OFT Directive, as well as Court costs, personal costs (loss of income etc.) and administration costs at £12 per hour.

 

From the date of this letter, I shall monitor this and other accounts in addition to my credit file closely, for evidence of retaliatory or similar action and advise that you be aware of the recent OFT directive in regard to this issue.

 

Finally, I note from my on-line account summary, that additional charges are due to be applied to my account. In light of the above, I request that you either remove these charges as a result of this claim or add them to the total of my summary claim below to form an additional refund.

I look forward to your response and appreciate you co-operation in this matter

 

 

Yours faithfully

 

 

 

Mr *************

[reload]

I concur entirely. One of the arguments raised by the BBA (British Banker's Association) is that going overdrawn/returning DDs involves risk management handling of your account (aka the manual intervention argument, but that's one for another time).

 

However, using the example of:

 

£5 left in your account

£10 DD comes in, gets returned.

Lloyds charge you £30 for returning the DD

Lloyds charge you £30 for going over your non-existant 'agreed overdraft'

= -£55 o/d on your account.

 

In terms of risk management, this is quite frankly bonkers. A -£5 risk by allowing the DD vs a -£55 risk?! Which would you go for?

 

Of course, we all know they go for the higher amount as A) They screw more money out of you, and B) They get to charge more interest on the overdraft amount, natch.

[reload]

Hi dave, and welcome to the club

 

Excellent letter, it'll be interesting to see what response you get to this - although I have a funny feeling it'll be a cut/paste job from the standard template response that everyone gets. Call me a cynical paranoid if you will, but..!

[jonni2bad]

There are several issues here, in my opinion.

 

Firstly, you are presuming that someone will read this in it's entirety and have the neccessary level of authority to deal with it. I think, once it becomes obvious you are asking for a refund, it will simply be filed as such without much thought.

 

Secondly, we have a process in place already that has been proven to work. We can only advise users to follow this, we cannot force anyone, but diversity may mean missing some vital points, or indeed adding points that could harm your case.

 

I too don't really have time to read everything word for word, but I will pick out a couple of issues so that you are aware of what I'm referring to when I say the above...

 

which I doubt incurs costs exceeding 50 pence to such an automated organisation

Which now means you are saying that 50p is fair, so surely you would have to allow 50p for every breach when you make your claim?

I request be repaid to me unconditionally within 7 days of receipt of this letter.

This will harm your case should you reach court action. If you are not aware why, then more reading of the FAQ section is needed.

as well as Court costs, personal costs (loss of income etc.) and administration costs at £12 per hour.

Again, this is not going to happen. A small claims action does not include such costs, and by writing this you will letting the bank know that you have not done your homework. The chances of them taking you on in such circumstances will increase.

 

I can't stress strongly enough the need to keep things simple. We have attempted to do that for you with our templated letters.

 

The choice, though, is always yours.

 

Best of luck with your case.

[Robertxc]

I think the letter's ok, but perhaps a little verbose? You go into great detail about an argument which they're very familiar with by now, and which they'll probably just skim over. I guess it's down to what you feel comfortable with. I'll shortly be sending off a similar letter, which will basically be along the lines of:

 

Dear sirs,

 

Please find enclosed a list of unlawful charges...

 

You have 14 days to return them or go to court...

 

Yours faithfully.

 

My personal preference is to say as little as humanly possible, because it allows less opportunity for them to come back and debate it. What I will always try to do is force them into a position where the only place they can debate the matter is in court - which of course, they won't do.

 

Having said that, it seems a waste not to send such a lavish letter now...;-)

[dave&sueb]

What I would like to know.....and this is one for any legal seagulls amongst us. is this.

Could a charge be brought against a bank for a decision to either allow a payment knowing it will break t's and c's in the interest of applying the highest penalty or disallowing a payment and still applying a penalty. Either way, we still incur a charge and go over a limit but it is the banks that have control on how far we go. Therefore, allowing a payment in the knowledge this will incurr a maximum penalty, the banks are constructively maximising their penalties.

This can be carried over to their other right, which is to cancel a d/d upon non-payment which has happened to me. By not doing so, the banks are mindful of the fact that most d/d's will be re-presented and therefore are rubbing their hands in anticipation of yet another impending charge. This is surely, 'constructive charging'

My point is, if banks refused all debits that would result in breach of their t's and c's then none of us would be in the predicament that we are, or at least it would be minimised and likely, manageable

[dave&sueb]

Hi,

having sent my initial letter (26/6/2006, posted elsewhere on this forum), I have now had the 'standard' template letter declining to pay up..

So, here is my LBA, which has taken ages to put together!!

any comments welcome as I am posting it tomorrow! (monday)

 

Ms Musarat Siddique

Customer Care

Lloyds TSB Bank PLC

125 Colmore Row

Birmingham

B3 3SF

Your Reference BHAM/MS/CC/889120

 

Dear Ms Siddique,

 

 

- Letter Before Action -

 

 

 

This letter offers you (Lloyds TSB Bank) a final 7 (seven) day opportunity to avoid action in the County Courts for the recovery of monies taken from me unlawfully via my current account.

 

 

I acknowledge receipt of your letter dated 29/June/2006 in which you decline my request for a refund of charges.

 

In response to this, I re-iterate my claim and draw your attention to the contents of my last letter dated 26/06/2006.

 

I give notice, however, that if you fail to respond positively within seven days of receipt of this letter, I shall begin proceedings in the County Courts with the aim of recovering all sums owed to me for the full term allowed by limitation and will include costs associated with such action. In addition, my claim will include interest at the rate laid down under the County Courts act which is currently 8%.

 

Since you have failed to respond satisfactorily to my previous letter, I shall copy all correspondence to the OFT in the form of a complaint upon the basis that you have failed to comply with the Office Of Fair Trading direction of 5 April 2006 and are therefore not a "fit and proper person" to hold a consumer credit licence under the 1974 act. If you do not understand what this means please seek advice from your legal department.

 

I look forward to a more positive response not later than Tuesday 11/July/2006 though if you feel you need more time in which to consider your response, please contact me in the first instance.

 

 

Yours faithfully

[dave&sueb]

Hi Guys, Thanks for the response, I like constructive criticism, and was aware that the letter was verbose and truthfully, not altogether happy with it, anyway it has been sent now and standard reply received as expected!

 

Have just written LBA and is similarly verbose, but I always feel it is best to cover all the avenues and detail in one hit.

It does seem to work as over the last 3 years, similarly verbose letters have won me ~£28K in one way or other. Thats not to say the simple route wouldn't have had the same result of course.

I will tend to take your advice however and go simplify my LBA.

If you want to look it over, I will post it here shortly.

Dave

[Michael Browne]

Is there anywhere in the letter a figure of how much you are claiming?

[dave&sueb]

Does there need to be when I have referred to my original letter containing all information?

Dave

[Michael Browne]

Well I can't see it in your original letter either. How much is it?

[dave&sueb]

Hi Michael,

You are right, the figures and detailed breakdown were in a seperate sheet printed from excel

The total claim ( for 4 years) is £2750.46

this data was available online, the additional 2 years are the subject of another claim once I get all my data

[alanfromderby]

THREADS MERGED

Why are you sending another letter - you made it clear in the previous one that you would take action if they failed to carry out your request.

[Michael Browne]

Right, I wasn't sure if it was me, I'd dozed off after the eighth paragraph, but I see you've amended it to a more manageable size.

 

Anyway, I think you ought to mention the figure in your letter and your timescale is half that generally reccommended. If, and I know it's a big if, it ever got to court, a judge might think this wasn't a reasonable length of time to give the defendant

[dave&sueb]

Yep,, that is why I have added an olive branch at the end, giving them the opportunity to request additional time if needed! should suffice i think.

[dave&sueb]

Ok...here is, I hpe, my final draft of LBA......any comments welcome.

 

Ms Musarat Siddique

Customer Care

Lloyds TSB Bank PLC

125 Colmore Row

Birmingham

B3 3SF

Your Reference BHAM/MS/CC/889120

Dear Ms Siddique,

- Letter Before Action -

This letter offers you (LloydsTSB Bank) a final opportunity to avoid action in the County Courts for the recovery of £1829.14 taken from me unlawfully via my current account.

I acknowledge receipt of your letter dated 29/June/2006 in which you decline my request for a refund of charges.

In response to this, I re-iterate my claim and draw your attention to my last letter of claim dated 26/06/2006 with the following amendment; following advice, I amend my claim in this instance to the figures presented here and represent the period 01/07/2002 to 01/06/2006 inc.

The figures previously estimated for the eligible period prior to 01/07/2002 will be the subject of separate correspondence and are disregarded for the purposes of this claim.

Summary of Claim

Details

*Actual charges between 01/07/2002 to 01/06/2006 inc

£ 1,655.00

Excess O/D Interest between 01/07/2002 to 01/06/2006 inc

£ 174.14

Total of documented charges (including excess o/draft interest)

£ 1,829.14

 

I give notice; however, that if you fail to respond positively within seven days of receipt of this letter, I shall begin proceedings in the County Courts with the aim of recovering the monies owed to me and to include costs associated with such action. In addition, my claim will include interest at the rate laid down under the County Courts act which is currently 8%.

I look forward to a more positive response not later than Tuesday 11/July/2006 though if you feel you need more time in which to consider a response then please contact me in the first instance with your proposal.

Yours faithfully

[dave&sueb]

Ok,

Got prompt and predictable response to LBA..nothing more to add ..blah blah

so have raised cash for N1 Claim.

Been number crunching all evening having just got most of my data back after taking SAR to local branch..they never wanted the £10 !!!

It wasn't complete and was missing some early entries but I know all was pretty much OK back in 2001 so not bothered about the missing data.

 

Could do with some help on the Particulars of claim though, can't find much on the forum. Am looking for a detailed wording for this and am in a hurry!!

Anyone help appreciated

[dave&sueb]

Can anyone put forward a well worded particulars of claim text as I can't find anything in the forum?

[jonni2bad]

The 'detailed wording' is in the Templates Library; look for Particulars of claim - hard copy version.

 

This is for submitting an N1 into your local court. If yo are claiming online, the text will need amending as there is limited space for both characters and lines of text.

 

Submitting in person is far more ideal since it allows you to use full text and to submit copies of the spreadsheet with the claim. If doing it in person, submit 2 copies of each (N1 and spreadsheet).

[dave&sueb]

Will be putting N1 file in to my local court this week, been trying to raise the cash.....

[Missmarcy]

IN THE ANYWHERE COUNTY COURT

 

BETWEEN

 

JOE BLOGGS CLAIMANT

 

And

 

GRABBBIT BANK LTD DEFENDANT

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant [has] [had] an account 1 ("the Account") with the Defendant which was opened on or around 2 [and closed on or around 2 ]

 

2. During the period in which the Account [has been] [was] 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. 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.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related 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) 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.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £ 3 and any interest charged thereon;

 

 

b) Court costs;

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

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

 

 

Signed:

 

 

Date:

Notes:

 

Delete words in square brackets if not applicable

 

1. Insert a/c no.

2. Insert Date

3. Insert Sum

[avlasc]

Is this for MCO? if yes then the particulars above wont fit .... I have the text I used let me know if you want it?

[ehstevie]

You'll find all the details in the bank templates, don't rush into it, take your time reading this site, some great threads and lots of people willing to help.

 

link for MCO particulars

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/34887-5-money-claim-line.html

[sainth2]

yes please if you could let me have the text you used that would be great.