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  • 4 weeks later...
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Hi Guys

Latest update

 

Just received a letter from HSBC informing me (in short, though it was a 3 page letter) that they consider the matter closed.

 

In response you have stated that although the charges could not be assessed under regulation 6(2)b of the UTCCRs they are not precluded from assessment under regulation 5(1) of the UTCCRs.

 

The Office of Fair Trading, which brought the bank charges test case against various banks have challenged informal overdraft charges on two grounds, namely [email protected] (a) they constitute penalties at common law; and (b) they are unfair under regulation 5(1) of the UTCCRs on the basis that they are too high. As has now been definitively determined, neither of these two challenges is open to the OFT or consumers.

 

The rest is more or less waffle.

 

The question is where do I stand?

 

Rich

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Hiya Hasselhoof :) what do you mean the rest is waffle.. its all waffle!!!

 

Just received a letter from HSBC informing me (in short, though it was a 3 page letter) that they consider the matter closed.

 

They would love it to be closed but they are wrong :rolleyes:

 

In response you have stated that although the charges could not be assessed under regulation 6(2)b of the UTCCRs they are not precluded from assessment under regulation 5(1) of the UTCCRs.

 

The Office of Fair Trading, which brought the bank charges test case against various banks have challenged informal overdraft charges on two grounds, namely [email protected] (a) they constitute penalties at common law; and (b) they are unfair under regulation 5(1) of the UTCCRs on the basis that they are too high. As has now been definitively determined, neither of these two challenges is open to the OFT or consumers.

 

Totaly wrong, the legal arguments that should have been addressed by the test case eventually disseminated to the issue of the correct interpretation (in its European context) and application of Regulation 6(2) of the Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083 (“the 1999 Regulations”)Regulation 5(1) was never addressed.

 

Write back and tell them they are wrong, you can even quote Lord Phillips who stated in the test case appeal judgment (somwhere around paragraph 80 - 90 I think) that he considered clause 5(1) could be used.

 

pete

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sorry to hijack the thread hasselhoof..... but hi to castle and johnny - long time no hear eh, just passing thru the site to see what's going on these days and delighted to see that you are both still here as helpful and dedicated as ever - power to you both mwah x nettyg aka perky ;)

If i've been helpful in any way....then tip my scales over there!

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Hi All

 

Trying to work out my response to the letter from HSBC, the more I think about it, especially with the news today about the banks getting their hands slapped for the complaints procedure. The bank lied to me in their letter as I understand it, do you think it's worth writing to the FSA or the FOS in regard to this with a copy of the HSBC letter pointing out the lie and requesting their assistance in the case etc?

 

On a side note how are the new court strategies coming along? Holding HSBC off at the moment but would love to take them to court.

 

Rich

 

PS ignore my grammatical errors, only had 4 hours sleep

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Thought I'd include a first draft of my proposed letter, what do you think?

 

**

Dear Susan Loker

 

Thank you for your letter dated 19th April 2010, Having read the judgemnt of the court I’m sorry to inform you that the information you provided in your letter is not correct. I will quote the judgement here for your information

 

Issues before the judge

 

8. As already indicated, the principal issue before the judge was whether the OFT is entitled to carry out an assessment of the fairness of the Relevant Charges. It is not in dispute that it is for the Banks to show that the case falls within regulation 6(2)(b) of the 1999 Regulations. At [33] of his judgment the judge identified the first question as being whether assessment of fairness is prohibited because it would “relate … to the adequacy of the price or remuneration, as against the goods or services supplied in exchange” within the meaning of regulation 6(2)(b) of the 1999 Regulations. In this connection he identified the third question as being whether, if and in so far as regulation 6(2) applies, the protection afforded to the Banks is that the particular term is not to be assessed for fairness (the ‘excluded term’ construction) or whether the Banks are protected against a particular type of assessment (the ‘excluded assessment’ construction).

 

9. However, he also considered (among other things) whether specific contractual terms are in “plain intelligible language” and whether any of the terms giving rise to charges is a penalty at common law: see the second question identified at [33] and [35].

 

As you can see no mention is made in regard to regulation 5(1) of the UTCCRs in this. Lord Phillips indicated in his summing up that this finding did not preclude the use of 5(1).

I’m not sure whether your letter was a mistake or an intentional attempt to force me to drop my complaint, however I will be copying this letter as well as copies of your letter to the FOS and FSA as part of a complaint regarding your handling of my complaint.

 

**

 

Thanks again

Rich

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  • 2 months later...

Hi All

 

Latest developments.

On 15th June I received a red final demand from wescot to pay up, so I phoned and informed them that the case was still in court and that nothing could happen until that was sorted. They informed me that if I didn't pay they would send collection personnel to my door, I said I would have them arrested if they tried to step inside, etc. They said they would start court proceedings against me. So I told them that that would not proceed as my case was already there, they then said that they had been informed by their client (HSBC) that they had won and I has to pay up. The conversation went no further.

 

This had me worried though, so I trotted down the the court and asked there, the last action of any type on the case was my letter in April informing the court that I still wished to pursue the case but in light of the test case I would like to amend the case. Before this the last action was the stay in 2007.

 

Today I received a letter from wescot's solicitors telling me that if I didn't pay within 10 days I would be taken to court and to contact wescot to arrange payment, so I called wescot and told them that I had been to the court and the case was still active etc and that if they attempted to take me to court they would run smack into my case that was already there.

 

I know I'm right in this, I was just wondering if there might be a case for harrasment in here somewhere? And is there any news on the amendments to court case that I need to amend my case and get this finished?

 

Rich

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Hiya Rich :) they used Moorcroft against me and I sent them this :D

 

Moorcroft Debt Recovery Limited

PO Box No 17

2 Spring Gardens

Stockport

SK1 4AJ

Dear Mr Martin

My account with HSBC Bank Plc

Account number xxxxxx-xxxxxxxx Outstanding Balance £ xxx.xx

Moorcroft Reference xxxxxxxxxxxxxx

 

NOTICE OF LITIGATION ALREADY IN PROGRESS

COUNTY COURT CLAIM NUMBER XXXXXXXX

 

I acknowledge receipt of your letter dated 28th September 2009 and again confirm to you the debt you have been instructed to recover is already the subject of my own County Court Claim No XXXXXXXXX against your client.

Your own proposed litigation against me is totally pointless and any costs you incur proceeding with this action will be your own responsibility as you are not a party to the litigation that is already in progress.

I suggest you refer back to your client or their legal representatives DG Solicitors who are fully aware of the current situation before you waste any of your own money in futile litigation.

Luv and Kisses

Castlebest

Cc

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

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  • 10 months later...

Hi Guys

 

Need some advice, just had a letter from the court stating my case will be struck out as there is no power under 6(2)b of the Unfair Contract Terms in Consumer Contracts Regulations 1999 to assess the fairness of those charges. I need to know what grounds can I fight them, i.e. what amendments do I need to make to fight them and what grounds do I use? And is it worth fighting or shall I just throw in the towel now?

 

Thanks in advance

 

Richard.

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