H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[Alphageek]

Nice post tinytot. Thanks for sharing.

[yourbank]

Regarding the memo - without seeing it is impossible to say but it could be referring to their standard 'refund one charge if you have been a good boy for 12 months' policies to 'don't refund anyone till 2012' then 'only if you are a good boy for 3 years'.... rather than anything about refunds off the back of the test case (ie 'we're going to win and this is how we will continue' as some one said earlier)

 

It would be interesting to see it in context.

[InformedSearcher]

Apologies as I know the relevancy is very loose here, but banks in Australia and New Zealand are also being impacted by overdraft charges, so much so that National Australia Bank and Bank of New Zealand have now opted to stop imposing charges altogether. Apparently this is because of the number of complaints received from customers charged $25 for being a $1 overdrawn.

If only UK banks could see the light....

 

Link

 

PS I read the board often, I just don't contribute as everyone is so much more knowledgeable than me... and apologies again

 

LOL you made me laugh so much.

I have this vision of all the (so called ex public school) bankers sitting in their respective private members' clubs. They are discussing how such banking sections throughtout the world act like they do. Then they think of Austrailia and joke about sheep and look shocked that such banks have decided to listen to complaints and act on them. 'Listen old boy', puffing at the cigar and sipping coffee, 'Those Australian sheep people need to visit the UK and see how banks are really run. What was that? Ahh yes those degenerates here should know their place and be darned lucky we allow then what we do', with all the men bursting out into loud laughter.

.... sorry could not resist.

Michael

[Conniff]

Apologies as I know the relevancy is very loose here, but banks in Australia and New Zealand are also being impacted by overdraft charges, so much so that National Australia Bank and Bank of New Zealand have now opted to stop imposing charges altogether. Apparently this is because of the number of complaints received from customers charged $25 for being a $1 overdrawn.

If only UK banks could see the light....

 

Link

 

PS I read the board often, I just don't contribute as everyone is so much more knowledgeable than me... and apologies again

 

It's nice to read, thanks for sharing that. It seems as if there is just one school for all the worlds bankers.

[paulwlton]

Just going back to the UTCCR 1999 in relation to whether the contract would fall under its protection. It would appear that the relevant date is the 1st July 1995 (date the regs came into force) therefore, the customer must have entered into the contract after the relevant date to be afforded protection.

 

Anyone think contrary?

 

PW.

[Rhia]

Subbing with interest.

[srfrench]

Incorrect Paul

 

From that date it comes into force. In other words all those people that have an account opened before that date are still protected as will be those who opened accounts after that date.

 

Basically all this act does is continue to protect everyone on a rolling basis insofar it amends the current legislation to make it more up-to-date and valid whilst continuing to update the previous act.

 

So by all counts the 1995 act replaces the previous act but continues to apply over the period the old act covers...eg from say 1990

[Rhia]

I am attempting to claim back Natwest business interest charges from 1988 onwards. Does this affect my case? In other words can I use UTCCR or as it is a business account do we just fall back on common law and Unfair Contracts 77 (I think off the top of my head?).

 

I didn't think these laws were retrospective.

[paulwlton]

Incorrect Paul

 

From that date it comes into force. In other words all those people that have an account opened before that date are still protected as will be those who opened accounts after that date.

 

Basically all this act does is continue to protect everyone on a rolling basis insofar it amends the current legislation to make it more up-to-date and valid whilst continuing to update the previous act.

 

So by all counts the 1995 act replaces the previous act but continues to apply over the period the old act covers...eg from say 1990

 

I'm not sure on that, I think there was an HOL case where it stated that housing tennants were protected under the UTCCR 1998 if the contract was entered after 1st July 1995.

[srfrench]

If that's the case Paul then I sit corrected

 

So basically, whether you had an account opened prior or after 1995 then it will apply from 1995.

[car2403]

If that's the case Paul then I sit corrected

 

So basically, whether you had an account opened prior or after 1995 then it will apply from 1995.

 

Surely the question that needs to be asked is "was the enforcement of the term fair when it was applied?".

 

The Banks know what this law means, so they should have made sure their T&C's, which have changed since 1995 to accomodate the UTCCR, was fully compliant.

[Aequitas]

I do not think there is much in the Unfair Contract Terms Act 1977 that helps with respect to bank charges. In the words of the premable it is "An Act to impose further limits on the extent to which under the law [ ] civil liability for breach of contract, of for negligence or other breach of duty, can be avoided by means of contract terms and otherwise".

[car2403]

I do not think there is much in the Unfair Contract Terms Act 1977 that helps with respect to bank charges. In the words of the premable it is "An Act to impose further limits on the extent to which under the law [ ] civil liability for breach of contract, of for negligence or other breach of duty, can be avoided by means of contract terms and otherwise".

 

Correct. The Act restricts the rights of the parties to a contract from disallowing certain obligations which are deemed to be oppressive, but for the greater good. From memory, (haven't read the Act since I studied it some time ago) a good example is a Property Occupiers responsibilities for making their property safe for visitors to arrive at - so, if your employer, for example, had a term in their employment contract that said "no liability for breaches of health and safety will be accepted", while the contract term would be effective throughout the contract, the Act allows it to be challenged in Court (and probably declared unlawful under this Act) as it removes the obligations that Parliament clearly intended to lie with "Occupiers".

 

The Act applies, as the Bank are saying "this is what we will charge you and we will take the money from your Account", so reading the Act and the Regs together is where the power comes from. If the charges are unfair under the regs, the terms allowing their application could and should be challenged from the regs and the Act's perspectives, IMHO.

 

Of course, if they aren't unfair... (snigger, snigger)

[paulwlton]

Just going back to the UTCCR 1999 in relation to whether the contract would fall under its protection. It would appear that the relevant date is the 1st July 1995 (date the regs came into force) therefore, the customer must have entered into the contract after the relevant date to be afforded protection.

 

Anyone think contrary?

 

PW.

 

Sorry it was the court of appeal.

 

The Court of Appeal ruling ensured that Assured Tenants are in fact subjects to the Protection of the Unfair Terms in Consumer Contract Regulations of 1999 enacted some 11 years after the Housing Act of 1988 and confirmed by the Court of Appeal in 2004 some 16 years after the Housing Act of 1988.

The said Court of Appeal decision of 24 February 2004 applied this ruling retrospectively to all Assured Tenancy Agreements entered into after 1st July 1995 where the landlord is a ’seller or supplier of a property and the tenant a ‘consumer’ within the meaning of the Unfair Terms in Consumer Contract Regulations 1999.

The said Judgment ensures that tenants – including tenants in public sector accommodation –have consumer protection from unfair terms.

I'm not sure on that, I think there was an HOL case where it stated that housing tennants were protected under the UTCCR 1998 if the contract was entered after 1st July 1995.

[Paladine]

Have I missed something or are there people in the know before a decision is released?

 

I ask because I received a letter from a company the other day asking if I want them to take over my bank charges claim. Where they got my name and address from I have no idea, the only posts I have written re my charges have been on this forum.

 

Are they scraping CAG? The company is called Access Money and I am very annoyed that they managed to get my details, I am a very active privacy campaigner I take breaches of the DPA very seriously. But I will take this issue up with the relevant authorities.

 

However, today I noticed the authorised overdraft on my bank account had been withdrawn without notice - placing myself and my dependents in severe financial hardship. I spent an hour at the local branch trying to find out what was going on and they were very tight lipped. They put me through to their collections department on the phone who would not tell me why the overdraft was withdrawn; only that it was. As soon as I mentioned that removal of an overdraft without written notice is a breach of contract and unlawful they got very unhappy.

 

The chap insisted that letters are always sent out well in advance before an overdraft is withdrawn, so I asked him if he was stating that a letter was definitely sent out (I could see the screen my personal banker was on whilst I was on the phone - there was a section for correspondence and from what I could see there was nothing on the system saying a letter had been sent) but he replied that no he wasn't saying that because he hadn't checked. So I explained to him that the burden of proof that the letter was sent out should I take them to court would be on their shoulders.

 

At this point he got very unhappy indeed and threatened to stop dealing with the overdraft issue and just pass me onto complaints which would take longer and would leave us in hardship. I just said to him how about you sort out the overdraft issue fist and -then- pass me on to complaints.

 

To the credit of the "personal banker" in my branch he was actually very understanding and could not understand why the overdraft had been withdrawn as there has been continuous income going into the account since I graduated last summer (not huge amounts but more than £1000 a month). But the guy on the phone was a complete .

 

Then it occurred to me that we were expecting this, were indeed warned about it 2 years ago when we filed our claims. Many people warned that the bank might withdraw our overdraft in order to plunge us into an unauthorised overdraft so they could mitigate their losses with regards to our UTCCR claims. Now out of the blue exactly that happens and just a week after I receive this letter from Thesis (no-one has ever contacted me before with regards to dealing with our bank charges and I don't believe in coincidence).

 

I think we are going to hear something soon and I think this something is not going to please the banks and I think this information is already known by many even if it is not currently public knowledge.

 

The banks know they can get away with their current charging scheme because they have all had their T&Cs re-written to make them semantically lawful (albeit still utterly unethical) so it stands to reason that if the OFT test case is going to go against them they would try to mitigate their loses by removing overdraft facilities, allowing them to use their "lawful" charging system. So I am putting out a few feelers in Westminster I think, I have a lot of contacts there now given my work so I will let everyone know if something comes back.

 

On a final note, I personally think that the banks are taking huge liberties at the moment - charges have increased under their newly worded contracts (at least they have with Abbey) and given the current recession (which the banks caused) I expect more people are having difficultly than in the past 15 years. The banks should be banned outright from charging customers until such time as we are out of the recession they caused.

 

First they get bailed out with Tax Payers money, plunge the private sector into turmoil meaning reduced incomes and job losses and then they charge the tax payers AGAIN for being the victims of an economic crisis the banks themselves caused. They are currently on a 2 for 1 deal! It is outrageous and I am surprised they have not been taken to task over it already.

Edited August 3, 2009 by Paladine
ooops my bad it was not thesis

[noomill060]

Thesis is part of Link Financial a nasty debt collection company.

 

The Student Loans Company handed over administration of very many student loans to Thesis last year- do you have a loan from the Student Loan Company? This may be where they got your data from.

[ukaviator]

You can bet this is where they got your info from.

 

www.thesis-servicing.co.uk

 

Be prepared for a lot of calls and letters from this lot.

[Paladine]

My bad I had two letters on my desk and read the wrong one (was up all night eyes not working properly). Access Money are the company who contacted me about my bank charges. they were apparantly given my details by Churchwood/Loans 4 Sure - whom I have never heard of nor ever done any business with so I guess I will be contacting ICO about that one.

 

Yes Thesis have been in touch about my student student loans. I have passed all that on to my MP. Every year I send in my deferment forms by regular post and every year they claim they have never got them so I have to do them again and send them registered post - with one exception when I actually sent it registered post the first time.

 

Then they claim repayments are late and it doesn't matter if I submit another deferment form I will have to make repayments (non refundable) until they process the new form which takes upto 12 weeks. Every year I tell them to go to hell. this year the same thing happened again, so I passed the details on to my MP to sort out because I believe that they are deliberately not processing standard 1st and 2nd class mail (no proof of delivery) so they can squeeze a couple of repayments out of people who are permitted to defer under the threat of debt collection agencies.

 

Every year I phone them up multiple times and every time I phone them there is no record of my previous call on their system and I am not exagerating this has been going on since my first degree in 1997 every single year without fail, drives me nuts (I would be interested to hear if anyone has had the same problem because if they have Royal Mail must have a boatload of deferment forms hanging out somewhere).

[Alphageek]

Yes Thesis have been in touch about my student student loans. I have passed all that on to my MP. Every year I send in my deferment forms by regular post and every year they claim they have never got them so I have to do them again and send them registered post - with one exception when I actually sent it registered post the first time.

 

Do you ask for proof of posting when sending 1st/2nd class?

[Paladine]

OK this gets more and more interesting. I phoned Access Money and was greeted by a Merseyside accent just giving his name, not the company. I asked him how he got my details, he didn't know. I asked him to send a copy of all the information they have about me on their systems but he was not familiar with the Data Protection Act and said he would have to talk to someone "much higher up" than him. I asked him why the Letter of Authority they attached stated:

 

"The undersigned confirm having received a copy of Access Money Limited's Terms and Conditions and confirm that they are fully understood and accepted as the binding agreement in connection with all services provided by Access Money Limited"

 

Yet no Terms and Conditions were included in the letter nor was their any location for terms and conditions specified.

 

He said "All our packs go out with a copy of the Terms and Conditions if you didn't receive one I am very sorry" to which I replied that was very convenient and that I would ask around on various sites to see how many other people have not received the Terms and Conditions that are -always- included.

 

I asked him for his company registration number, at least he got that right (06130626) and the details match the stationary but we all know that companies are cheap as chips to setup nowadays and it only takes a quick phone call and a debit card to do it. They changed their name in April 2008 from Moorsand Ltd.

 

I asked who their registered Data Controller was and he didn't know. I asked if they were registered on the Data Register with the Information Commissioner's Office - he didn't know.

 

Actually the only thing he did know was the company registration number and he was extremely flustered.

 

I told him I would drop an email to Stephen McCartney at ICO (whom I have a professional relationship with) expressing my concerns and that I would also drop an email to another senior contact at Trading Standards with regards to the Letter of Authority asking people to sign a statement regarding Terms and Conditions they have never seen. By this point he was just stuttering like a mad man. I explained to him that next time it might be wise to Google someone before datamining their details and trying to con them, he would have saved himself a lot of trouble had he checked me out first. Really not a good idea to try and pull a fast one with a privacy advocate. I thanked him for his time and told him I had enough now and hung up.

 

So has anyone heard from these guys and did they get a copy of terms and conditions in their letters? I will phone Stephen McCartney tomorrow (in fact I was supposed to have a meeting with him tomorrow but with this bank issue today it is no longer possible) and express my concerns. The ICO Register is currently offline so I couldn't check if the company are registered but I am sure Stephen can look that up for me tomorrow.

[Paladine]

Do you ask for proof of posting when sending 1st/2nd class?

 

No my missus pops them into the post box.

[noomill060]

No my missus pops them into the post box.

 

 

Then next time take it to the Post Office yourself and get a Proof of Posting certificate

[Paladine]

Then next time take it to the Post Office yourself and get a Proof of Posting certificate

 

I shouldn't have to - I probably have more chance of winning the lotto jackpot than there is of Royal Mail losing the exact same piece of standard post 12 years on the trot - the odds must be phenomenal and why are the calls not being recorded in their log? I have raised complaints about that with supervisors at least 4 or 5 times - it is pretty obvious that there is something dodgy going on.

[InformedSearcher]

Paladine: ACCESS MONEY LTD information filed as at Monday 3rd August 2009. Registered number 06130626

Not much data though.

Michael

[yourbank]

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