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UTCCR Reg. 5(1) – An imbalance of rights and obligations, contrary to good faith, and to the detriment of the consumer.

Surely we're seeking the broadest possible, practical (on a 'day to day' basis) interpretation and application to which this might be applied. Not merely occasional errors which, as YB says, the banks already have a mechanism to use.

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Surely we're seeking the broadest possible, practical (on a 'day to day' basis) interpretation and application to which this might be applied. Not merely occasional errors which, as YB says, the banks already have a mechanism to use.

 

 

"1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

 

 

The regulation from the original directive is above. The two issues on 5(1) is that it causes a "significant imbalance in the parties rights and causes"

and that it is "contrary to the requirements of good faith". This is where the 1 single solitary charges on one day not creating excess could be problematic perhaps if 6.2(b) on UTCCR 1999 is considered.

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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This is where the 1 single solitary charges on one day not creating excess could be problematic perhaps if 6.2(b) on UTCCR 1999 is considered.

YB, sorry to be so unyieldingly THICK, but whilst I do understand the 'not individually negotiated' aspect of the argument, the above has lost me a bit. Mind you I'm still trying to download the relevant bits of UTCCR,CCA et al...

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Hi,

 

Am I allowed to post a link on here to Martin Lewis's money saving expert website?

 

TheyrCriminals

If you can't give us a search word and we can search for it oursleves on the MSE forum.

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Hi,

 

Am I allowed to post a link on here to Martin Lewis's money saving expert website?

 

TheyrCriminals

 

Yup :)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

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YB, sorry to be so unyieldingly THICK, but whilst I do understand the 'not individually negotiated' aspect of the argument, the above has lost me a bit. Mind you I'm still trying to download the relevant bits of UTCCR,CCA et al...

 

6.2(b) if UTCCR 1999 seems to knock out price considerations. The charges are for "consideration" of a request, so to give an imbalance and it has to be a significant imbalance under UTCCR then one charge, in my opinion, is not creating a significant imbalance UNLESS it leads to a further consideration, for example, unpaid item leads to excess overdraft.

 

Its not the charge makes the imbalance, its the overall contract creates the imbalance.

Edited by yourbank

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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TBH....I'm pretty sure the SCoJ had in mind insofar as Reg 5 being unfair is the fact that the minority are subsidising "free-banking" for the majority.

 

The Banks have already admitted that this is the case and as such is inherently unfair under 5 (1)

 

Please correct me......;)

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

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:) have pm'd you

 

 

My personal view is that 5(1) UTCCR cannot apply to a group of consumers or an industry as a whole, it can only apply to an individual contract between A consumer and the bank.

Cross subsidy is something which is an everyday occurance in all aspects of the business world - to use for example Baroness Hales example of the hairdressers cheap day for OAPs, and I think Lord Phillips example of Ryan Air's cheap rates being subsidised by their full rates. Although the cross subsidy issue could be used as general supporting argument (as it is in my view inherently unfair in the application), it couldn't be used as the basis for a legal challenge under UTCCR.

Edited by yourbank

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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The answer is no with regards to that example, since the bank is compelled (only if they are caught out or an audit finds it)in view of their error to refund the charges and put the customer back into a position had the error not occurred (this depends on the personal relationship of the bank manager and customer)and that would include a refund of charges and interest and compensation where necessary.(but on rare occasions it would not include penalty charges especially if the relationship has been soured) Error's of this nature can occur and are usually resolved prior to the consideration happening but that is not always the case.

a case of undue influence co-ersion and threats on a personal basis from some rougue managers

sorry YB could nt resist having a poke

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http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Hi Guys,

 

Ok this is what Martin Lewis's website is stating as the reason why there is a chance you may be able to reclaim charges as a result of the Supreme Court ruling last November.

 

Unfair Terms in Consumer Contract Regulations 1999 (UTCCR)

The chief judge of the Supreme Court thought it important enough to say this ruling didn't stop people challenging fairness under 'Regulation 5' of the Unfair terms in Consumer Contracts Regulations (which the Supreme Court cases did not cover) – we believe this was a deliberate hint to look at this option.

Here's what Regulation 5 actually says:

5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

All the test case did was rule out that the price of bank charges could not be used to assess fairness under this regulation. So the old argument that charges are levied at £35 but it only costs the banks £2' has gone. Yet there are many other arguments other than price which can indicate unfairness – especially in combination...

 

  • Customers can't opt out
     
    Bank accounts cannot be 'individually negotiated', you get what you're given. This also applies far more specifically to bank charges – there is no ability to opt out of having charges, eg, to have an account where there is no function to go beyond your overdraft limit. This is a significant imbalance between the parties.
  • Unfair cross subsidy
     
    While it's accepted some cross subsidy is acceptable within business, here, the minority of customers are paying an excessive proportion of costs of the structure of banking. This creates a significant imbalance between the parties.
  • Effect on vulnerable consumers
     
    It is arguable that banking is a public service or at least has a public service element, more people have bank accounts than telephones – and we are strongly encouraged by the Government to use banking services. The workings of the original UTCCR directive mention this pubic service remit.
     
    Yet this is a pubic service where there is a cross subsidy that has to be met by the most vulnerable, least affluent members of society.
  • Charges snare and are designed to multiply

    The structure of £35 transaction bank charges are such that they effectively generate more charges – thereby trapping people in a charges spiral. In other words, you go beyond your limit, get a charge or charges, and then due to being unable to afford that charge, incur more.
     
    Many people who've had small numbers of charges initially have seen them multiply into the thousands and been unable to do anything to stop that process continuing.
  • Lack of competition
     
    Until very recently, since the advent of the bank charges test case, no bank marketed its accounts based on the charges a customer could be expected to pay. There has never been any competition on this – there is no choice for consumers to go elsewhere for a different level of charges.
  • Incomprehensible nature
     
    Consumers are not told clearly what the cost of their bank account will be in different situations and the interaction of those charges.
     
    Understanding when and how much you will be charged is not transparent, and while the terms and conditions lay it out, the practical impact of this is not explained – some banks often have difficulty interpreting these rules themselves.
     
    The name 'unauthorised' overdraft is a fallacy, banks do permit people to take money beyond their overdraft limit (and it is extremely profitable to them) and in fact have a second hidden ‘unpaid' limit beyond which they won't allow customers to take more money from – though they still levy more charges.
     
    Yet customers are not told when this will occur, or at what level their transactions will no longer be paid. Nor are they told the amount they can spend, nor given the ability to opt out of transactions once they know it will occur a charge – the information is only ever retrospective.
  • Money Management
     
    The entire structure of charging people repeatedly when they have little money, runs counter to the ability to fairly manage a bank account.
     
    One true example of this unfairness is a woman who thought she had £50 left of her overdraft – yet unbeknown to her, and not indicated by the bank, that day a cheque from two months earlier had just been cashed putting her over the limit.
     
    She then spent £40 in six different transaction (including a sub-£2 bag of carrots) and incurred £35 charge for each a total of £210. Yet had she been told of the situation, she could've funded the account, or even chosen just to take out £40 in cash – leaving only one £35 charge.

The OFT's view on this

 

In its announcement on 22 December, the OFT said it had looked at these arguments and thought there was only a limited chance of success using them with the UTCCR, part of the reason it decided not to continue the fight.

 

It may or may not work but certainly worth a try. There is also the new legal argument under the Consumer Credit Act 1974 which goes into detail too but unfortunately will be limited to certain consumers only.

 

Hope this is of some help.

 

TheyrCriminals

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in my case it was a mortgage protection policy with the bank (who used underwriters) but advertised it as their own and their name was on the d/d's to cut a long story short they failed to pay it for 12 months and applied £1270 in charges against me during that period. Once i discovered it had been done i complained and after a long drawn out battle they paid me the money and refunded all charges and offered me £100 compensation (which i told them to shove where the sun dont shine) I said that as they had charged me £1270 for THEIR error I would require the same amount which they of course refused.

HTH (Hope This Helps) RDM2006

 

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are we sinking back into history now?

robotic managers sorry kenny lolicon7.gif

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Going back in distant history, I do remember branch managers (yes, I am that old). These days the branch staff are either cashiers, salespersons or spokespersons for head office and have no authority themselves.

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Hi RobRoy,

Yeh I remember them too - I remember mine in 1961, upon being asked if I could borrow to buy a motorbike, replied 'No problem young man - what collateral do you have?' I remember staggering out thinking a. what's collateral? and b. if I had it would I be asking for a loan?

Upon reflection I wouldn't have had it any other way - g'bless the old geezer.

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Heres another view

 

My statements are due on the 3rd of each month.

 

My pay day is the last day of each month.

 

If i incur a charge during the month there is another charge which is applied on the 24th of each month, which no doubt will be different for other people (neither the end of the month or the end of the statement period) HMMMM :???::roll: (so where does this date come from? perhaps yourbank can tell us?)

 

It is my opinion that it is deliberately set at a time that you are least likely to have the money to pay it, and as the bank knows when your paid and when your statement date is, it is abusing its position by choosing another date which it knows you are least likely to have the money to pay it.

 

Therefore, the bank, is acting against the financial interests of another person (you the consumer) and putting you at the risk of loss (ie you will lose money by paying these recurring charges) which is fraud by abuse of position

 

section 4 of the fraud act

4 Fraud by abuse of position

 

(1) A person is in breach of this section if he—

(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b) dishonestly abuses that position, and

© intends, by means of the abuse of that position—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

 

 

In my opinion

Edited by rdm2006
spelling error

HTH (Hope This Helps) RDM2006

 

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Has anybody tried a different route to test fairness?

 

The penalty action from 2006 won significant refunds on the basis that the banks did not want to defend due to disproportionate charges levied.

 

How can I as an individual ask a district judge to test the fairness of creditor/debtor relationship without all parties being privy to the operating costs, forecast default revenue, number of defaulted accounts, number of delinquent accounts etc etc?

 

I'm sure its privileged info that the banks will contest cannot be brought into evidence, but by doing so they are not allowing a fair test to be brought at hearing.

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4 Fraud by abuse of position

 

(1) A person is in breach of this section if he—

(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b) dishonestly abuses that position, and

© intends, by means of the abuse of that position—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

the fraud act and banks are different it is only fraudulent as long as it does not include banks it seems they are excluded from this act somehow ?

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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the fraud act and banks are different it is only fraudulent as long as it does not include banks it seems they are excluded from this act somehow ?

 

 

Big surprise there then lol

HTH (Hope This Helps) RDM2006

 

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Do we know which?

 

s.140A CCA 1974 (amended by the 2006 Act)

 

Has anybody tried a different route to test fairness?

 

The penalty action from 2006 won significant refunds on the basis that the banks did not want to defend due to disproportionate charges levied.

 

How can I as an individual ask a district judge to test the fairness of creditor/debtor relationship without all parties being privy to the operating costs, forecast default revenue, number of defaulted accounts, number of delinquent accounts etc etc?

 

I'm sure its privileged info that the banks will contest cannot be brought into evidence, but by doing so they are not allowing a fair test to be brought at hearing.

 

The Penalty argument is out of the window, suggest you re-read the posts earlier about that so we aren't repeating info. Essentially, the OFT didn't appeal the issue, so you probably can't bring this in your claim now.

 

Hi Guys,

 

Is it acceptable for Natwest Credit Card Services to not comply with my SAR as they want a cheque for the fee despite the fact I have authorised them to debit it from my credit card account, and there is sufficient money in there. Are they being deliberately obstructive or as it is a credit card account are they allowed to do this?

 

TheyrCriminals

 

Send them a Postal Order :confused:

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Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

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Ok guys and gals, i don't have much time today but can someone assist in looking through this European Law please. I have had a brief look through and it maybe something we can use.

 

Sections 26 and 28 look good.

 

EUR-Lex - 61998J0240 - EN

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Do we know which?

 

Hi Kenny,

 

This is the explanation Martin Lewis's website gives for claiming under the new legal argument under S.140 Consumer Credit Act 1974.

 

Section 140 a-d of the Consumer Credit Act (CCA) 1974

This is a piece of law that wasn't looked at in the test case, and in some ways it could be much easier to argue, though it applies to less people.

The specific piece of law is comes from an amendment made to a 1974 law made a few years ago...

Section 140a of the Consumer Credit Act says: The court may make an order … in connection with a credit agreement if it determines that the relationship between the creditor and the debtor … is unfair to the debtor...

Here are the key points:

 

  • Fairness can be about price
     
    As well as looking at all the same fairness issues as above, this can also rely on the issue already discounted by the Supreme Court under the UTCCR regulations. That is whether the cost of charges are disproportionate to the service provided in other words the “they charge £35 for a letter, but it only costs them £2” argument.
  • The banks must prove they're fair
     
    This is the brilliant bit about this argument, here the burden of proof is on the banks to prove that the relationship is fair and not the consumers to prove the charges were unfair.
  • This doesn't apply to everyone
     
    This piece of law applies to new charges from 6 April 2007, but only applies to people who had charges before April 2007 if the borrowing was still outstanding on 6 April 2008.
  • Provisions for redress

    The act also includes detail on what a consumer can be awarded if the charges are found to be unfair, which can include full or partial amounts – so the refund would depend heavily on a consumers particular circumstance.
     
    This means it is potentially a much more valuable route for those trapped in a charges spiral and have suffered other loses as a results eg, defaults on their account, bankruptcy and repossession caused heavily by charges.

The OFT's view on this

 

In our submission to the OFT when it was reviewing its decision whether or not to carry on with the bank charges fight - we explained these arguments.

 

In the end it decided that as the Consumer Credit Act is framed in such a way that the law specifically applies to the relationship between an individual and a lender - it wasn't suitable for it to carry out a collective action (see 3.16-3.18 of OFT explanation. However that in no way kiaboshes individual's ability to take action based on this legislation.

 

 

Hopefully this is of some help to some.

 

 

TheyrCriminals

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