My Mum v Yorkshire Bank - Hearing on 18/12 ***WON***

[rachel2609]

The defence in full

 

____________________________________________________________________

 

Dear My Mum

 

1. The correct name of the Defendant as set out in the acknowledgment of

service is Clydesdale Bank Plc trading as Yorkshire Bank (The Bank)

2. On or about 17.09.1990 the Claimant entered into a Credit Card

Agreement regulated by CCA 1974 with The Bank (The Agreement)

3. At all material times the Contractual relationship between the Claimant

and the bank was governed by the condition of use pertaining to the

Agreement.

 

At all material times the conditions of use provided that a late payment fee would apply should

any amount fail to be paid when it was due under the Agreement.

 

At all material time conditions of use set out the banks tariff of charges. The Bank will refer at

trial to the Agreement and the conditions of use for their full terms and effect

 

4. During the period 01.07.2000 to 01.02.2005 the bank charged the

claimant with late payment fees at the rate at which such charges were

from time to time payable under the conditions of use (the Charges).

 

The charges amounted to the sum of £488.00 as set out in schedule hereto.

 

5. It is denied the Charges or any of them were penalty charges as alleged in the particulars of

claim, the charges were a genuine pre-estimate of damage resulting from the Claimants failure to

make payment by the payment due date. Without prejudice to the generality of the foregoing;

 

1. The conditions of use were fair having regard to the following matters

 

(a) the cost to the Bank of maintaining administrative systems relating to unpaid

balances for the purpose of keeping the level of overdrawing under review and

controlled as far as possible

(b) the increased risk of loss to the Bank arising from such unauthorised

transactions and the associated cost of enforcement and recovery systems

© the need to operate standard procedures and to set standard charges in order to

avoid the substantial cost of individual assessment in relation to each particular case

 

2. The conditions of use complied with all relevant requirements of the Banking Code

as the Banking Code was in force from time to time.

 

6. In the premises the Claimant is not entitled to the relief sought or to any relief

 

Dated 24.05.06 Signed: KAR

 

___________________________________________________________________________

 

What does anyone think?

[caro]

It looks like they are trying to justify the charges by talking about overheads, but I still fail to see that a charge, which is basically an automated transaction would cost that much to administer. And what risk is there to the bank, they gain by taking the charges so that argument doesn't appear to hold up to me as a layperson.

 

Quote

the charges were a genuine pre-estimate of damage resulting from the Claimants failure to make payment by the payment due date.

Unquote

 

If it is a pre-estimate of damage, do they go back and amend the charge once any actual damage (or lack of it) materialises.

 

I think they have worked on a defence and want to test it out, and you are the unlucky guinea pig, but I don't think it would hold up in court personally. Stick with it Rachel and I suggest you look at the court buddy system.

 

It would be interested in Bank Fodders view on this.

 

Don't let them grind you down!

[pjdudley69]

I would also be interested in hearing BF's views on this, especially as I'm about to file my own claim. Could it be that YB might be one of the first to actually go all the way on this?

[caro]

Given the problem that Clydesdale customers are having even getting statements they seem to be digging their heels in.

[rachel2609]

Having re-read the defence at home (on hols now for a week - yippee!) I think its interesting to note point 5.1.c, is it me or is that more or less saying that they dont have manual intervention and it is all automated?

[NeilP]

Having read the defense you have mentioned, i cannot see anything there that isn't being used by other banks, or very similar things at least.

 

The main arguement they have here is that their charges are a pre-estimate of the loss that they could incur. They mention their overheads, the need to operate standard procedures... (ie. automated systems) etc.

 

The law agrees to these pre-estimated losses as long as they are not deemed to be excessive.

 

If you look at the overheads of YB, the cost of the installation of their automated systems etc and then divide that by the number of customers or the number of charges that has been generated by the system since it's inception, i cannot believe that you would achieve a sum anywhere near what they charge for going overdrawn etc. Therefore the charges are excessive and unlawfull.

 

 

Also, remember, that no one has actually made it to court yet. Everyone has been settled out of court. IMO your mother will not be any different.

 

Keep the faith, see it through, and you will be rewarded for your patience!

 

Neil.

[BankFodder]

As far as the fact of the defence giving in on time goes, there is nothing to be done even if it is an error.

As far as the defence goes, it is quite standard but rather old-fashioned as most banks now are referring to reasonable fees for contractual services and they are abandoning the whole idea of proportionate penalties. This bank however has not done this at all. They are still sticking to the proportionate penalty charge argument. However they are trying to blame the global systems costs for the high level of charge. This principle has been debated in the past (I can't remember where) and the clear conclusion was that when you calculate your penalty it has to refer to the actual costs incurred by the particular customer and not an averaging. In this way at least the banks defence puts them in breach of current penalty clause law. Additionally, their high levels of charge fly in the face of the stated tolerable maximum limit identified by the OFT of £12.

I think the best thing to do is just wait until the court date has been set. Then you can start to prepare.

Have you completed your allocation questionnaire? You should do this quickly. Don't forget that any settlement from the bank must include a refund of the allocation questionnaire fee

[rachel2609]

The allocation questionnaire has not been received for this as yet, I am assuming that it may be in the post today. As soon as I receive it I will complete it and dispatch it back to the Court

 

Thanks for your input

[rachel2609]

Moneyclaim now showing my default judgement request as REJECTED- ho hum!

[rachel2609]

Hello,

 

Just back from a lovely holiday in the Yorkshire Dales! The allocation questionnaire arrived last Saturday before I left so I quickly filled it in and returned it to the Court.

 

Whilst I have been away, Mum has received a letter from YB offering a partial settlement, something like £150(!). I haven't got the exact details at the moment, as she is ringing me this afternoon, in anticipation of what they have said I will be drafting a letter back telling them that its not acceptable!

 

Rachel

[rachel2609]

Right I have now got the letter that my Mum has received from YB. It has infact come from one of their Customer Relations Managers in Glasgow.

 

Basically it apologises for the lack of response to correspondence back in March 2006 and states that it was due to an adminstrative error that the complaint wasnt properly reopened and referred for independant review.

 

After further investigation, I would reiterate the comments of my colleague, blah blah blah, charges incurred could have beeneasily avoided. They have been levied in accordance with the Banks tarriff etc etc.

 

I would refute the allegation that a default notice has been entered against your credit record in relation to charges leved to your account. If you have evidence to support this please forward this to me and I will of course review this for you.

 

Whilst I am unprepared to accede to your request for a full refund of fees which have been applied as a result of your management of the account, I am willing as a gesture of goodwill to reimburse £178.00. This offer is made in full and final settlement of your complaint and is open for a period of 30 days for the date of this writing.

 

I am aware of the Particulars of Claim lodge with your local court and do appreciate that the Court Order will proceed if this offer is not accepted.

 

____________________________________________________________________

 

Now what is laughable about this letter is;

 

1. All correspondence has been responded to in a reasonable time scale

2. We have never alleged that a default notice has been entered, as one never has been!

 

Am I correct in thinking that they are just trying to use stalling/scare tactics to get my Mum to accept a lower offer? Any suggestions as to how I should respond?

As far as I was concerned this matter was now being dealt with by their Solicitors.

[caro]

How's it going Rachel?

[rachel2609]

Just a quick update, letter sent back to YB respectfully declining their offer of £178.00 in full and final settlement, and again requesting repayment in full inclusive of the court fees etc.

 

I also took the liberty to have a go about him about allegations of default notices, and the fact that he is clearly getting his correspondence and cases mixed up.

 

For good measure I sent a copy also to the in-house Solicitor who is dealing with it for YB for her records.

 

I guess the waiting game continues!

[caro]

As you said before they are just trying to scare/stall/bribe. Anything they can do to make you give up. Have you got a court date? As I have reached the stage where I need to do a Moneyclaim I am trying to find out what tactics I can expect from them. I think one person has won with YB but I can't find any details.

 

It can only be a matter of time before your Mum gets her money back.:grin:

[rachel2609]

No court date as yet, feeling quite chilled about it all at the moment. I feel that they have made a partial offer so why not full offer. Will see if my wishful thinking pays off!

[rachel2609]

Found out why no further action as yet, as I ahve received a General Form of Judgement or Order from Doncaster County Court saying that if they dont receive the Allocation Questionnaire by 4pm next Thursday that the case will be srtuck out.

 

Having sent the original Court Allocation Questionnaire by recorded delivery and it shows as delivered at the beginning of the month, I am obviously most perturbed! I will therefore fill in the 2nd Allocation Questionnaire, and compose a small note to accompany it and hand deliver it to the Court myself.

 

Hrrmph!

[caro]

What a a pain. Still the interest will be mounting up.

[rachel2609]

Just phone Doncater County Court to ensure they have received the 2nd copy of the Allocation Questionnaire. I am happy to report that they have and was indeed informed that it had gone through to the Judge - whatever that means!!

 

At least things seem to now be back on track.

[rachel2609]

Well, talk about delaying tactics, by the Courts though! We have now got a letter from Doncaster asking who signed my Mum's Allocation Questionnaire!!!?!?!??!

 

I phoned them on my Mum's behalf and asked what was the meaning of the query, all the Claims Section could advise me was that my Mum's signature looked like a C as the initial instead of a G, I explained that she was both arthritic and left handed, and they have asked for confirmation in writing. Totally bizarre!

 

On a brighter note we have had a court date of 27th September allocated for one of our other claims against LTSB so things are still moving along albeit veeeerrryyy slowly!

 

Rachel

[caro]

I can't believe how long this is dragging out. Looks like a few of us are in for a long wait.

[norvernrob]

I can't believe how long this is dragging out. Looks like a few of us are in for a long wait.

 

I've got as long as it takes, and i'm sure all the other YB claimants have as well

[caro]

I've got as long as it takes, and i'm sure all the other YB claimants have as well

 

Oh yes indeed. Interest mounting daily.

[rachel2609]

Some postive (I think) developments.

 

We received this morning a letter from Doncaster County Court in which the Judge has ordered that the claim is stayed until 11 August 2006 to enable the parties to attempt settlement.

 

It goes on to say, on or before 25 August 2006 one of the following steps must be taken:

 

either

1 the claimant must notify the Court that the whole of the claim has been settled or

2 the claimant or defendant must write to the Court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying and mediator, expert or other person helping with the process. The letter should confirm the agreement of all the other parties.

or

3 all the parties must file a completed allocation questionnaire at the Court (This has already been done on my part) Where a settlement of some of the issues in dispute have been reached, a list of those issues should be attached to the completed questionnaire. The list must be agreed with the other parties and must indicate that it has been agreed.

 

Date 17 July 2006

 

I guess I just hold on and wait and see what happens? Any advice anyone?

[Alleycat]

Hi, mines a Barclays case, but I have had a similar letter from Bradford County Court. Ordered stay to enable us to attempt settlement but also to allow the Elliot vs Lloyds case to be heard which is odd as that claim was settled out of court about three weeks ago now. I am going to ring the courts tomorrow to find out about this, but will also be contacting the solicitor dealing with all the Barclays cases as well as I assume that even if the stay regarding the Elliot case is withdrawn, the other one will stilll stand.

 

I would suggest getting in contact with Yorkshire Bank (whichever solicitor signed the defence form) to try to negotiate further. Not sure if it would be best in writing or by telephone. I guess telephone is quicker and could maybe be followed up in writing?

[caro]

I would not even consider phoning unless you have recording equipment available and even then I would not do it, as I prefer to have everything in writing as proof, and also to prevent saying anything on the spur of the moment that you can't take back later.

 

I would go with your idea Rachel of waiting to see what happens. You have made 2 attempts to settle before your claim, so I feel that it is down to the bank to try to settle now. If they haven't been in touch nearer the deadline you might want to rethink.