Need Help Please.

[neildexter]

Hi

 

I need some help please.

 

I am now as far as receiving an Allocation Questionaire along with Lloyds TSB defence. I have to return the AQ by August 8th along with my own defence. I have read info on money saving expert website and and on here and cannot seen to find anything to help me with a defence.

 

Lloyds have not yet paid the court fee. and only have 10 days to do so. I am just a bit worried as to how far this will go. The solicitors dealing with lloyds are Sechiari Clark & Mitchell, Brighton.

 

Just need some help with what to write for a defence or do I need to ring the solicitor up to see if it can be settled out of court. Just not sure what I need to do next.

 

Many Thanks

[DJ Tazzz]

Hi Neildexter,

 

Firstly don’t fret about it, I have recently submitted mine and will include a copy of what I used in my counter defence. The material is drawn from this website but of course I have edited it my self and re-worded it but you are more than welcome to use it. The people that discussed it, I think was dchurch but can’t recall precisely. I have gathered other materials and found all the sources etc so you will note the links etc. I hope to in the near future once my dispute is settled to build a complete page on this site with absolutely everything.

 

Here goes.

1. The defendant has never ‘made clear specific reference highlighting such charges’ referred to a service or a service charge in any of its letters or any other communication to me regarding charges in almost 6 years of banking with the defendant. Therefore the banks defence to these charges as not being penalty charges but rather charges for the supply of services is without merit. However, I refer to the banks own explanation of these charges on their website as detailed below. If it is not immediately apparent, I would point out that in the entire explanation, there is no mention of the word or wordings service.

 

“If you make a mistake

We understand that everyone can make mistakes from time to time. This is why we won’t charge you fees the first day you go overdrawn without agreement, as long as you haven't done so in the previous 12 months.

 

If you go overdrawn without agreeing this with us

We charge a higher rate of interest for unauthorised borrowing and we display this rate in all our branches, and on our personal overdraft rates. We will also charge you for any unauthorised borrowing; details are in the following table. These will be charged to your account monthly.

 

Overdraft excess fee Charges

We charge this when you go overdrawn by £10 or more above any agreed limit, or by £10 or more without any agreed limit. We will charge this fee again on each day we make a payment for you that increases your unauthorised overdraft by £10 or more. £30 a day (maximum of 3 charges in any one monthly charging period - maximum of £90)

 

Returned item fee Charges

You'll be charged this fee whenever there is not enough money in your account to make a payment, such as direct debit, cheque or standing order. £35

 

We will write to you every time we are unable to pay an item, or the first time you go overdrawn by £10 or more without agreement. We use the balance on your account at the start of the day* to make decisions on whether or not to pay cheques and other items presented for payment that day. Please make sure you have enough cleared funds in your account at the close of business the day before the payment is due to cover any payments that you wish to make.”

The source of which can be found at http://www.lloydstsb.com/rates_and_charges/current_account_charges.asp

 

2. The defendant’s Terms & conditions do not set out clearly ‘in customer friendly language’ for any consumer what services might be provided to a consumer where events of default occur. Those terms will therefore be construed in favor of the consumer and not the bank.

 

4. In the banks defense submitted to the court for this case, in point (2) it is noted that the agreement between the defendant and the claimant is a commercial contract and such any failure to adhere to the terms and conditions set forth would be deemed a contract breach and thereby providing for these charges in way of penalties. The charge leaflets make clear that the charges are payable upon the occurrence of an event of default. The liability to pay the charges arises immediately after the default occurs. The charges are not expressed to arise as a result of the provision of a service subsequent to a default, but immediately after the existence of the default arise.

 

5. Paragraphs 1.19 and 4.21 of the Office of Fair Trading (OFT) report on credit card charges. The OFT rationale applies to bank default charges and the bank is seeking to disguise them as service charges. The Unfair Terms in Consumer Contracts Regulations (UTCCR) are concerned with the intention and effect of contract terms - not the mechanics. So it doesn't matter what the banks call the charges. If they look like penalty charges then it is more likely than not that they are.

 

6. The comments made to the treasury committee in which several major heads of banks were present, it was asked of Mr Goodman (Chief Executive, The Royal Bank of Scotland) of a situation with a customer and the discussion that followed clearly give reference to these charges as being default charges.

 

“Mr Goodwin: In situations like that, sense would prevail I would hope, when you look at the bill. These charges are applied automatically; the system is applying them, so you do not know the full circumstances.”

The source of which can be found in the Treasury - Minutes of Evidence THURSDAY 16 OCTOBER 2003, Examination of Witnesses (Questions 980 - 999) and the link is http://www.publications.parliament.uk/pa/cm200304/cmselect/cmtreasy/125/3101611.htm

 

7. The bank will have to give evidence of exactly what service is provided, how, by whom in respect of each and every charge’ and the reasonableness there of’ - when I know that the fees are applied automatically and immediately - and I know that some banks have already confirmed that they don't keep any records of any manual interventions.

 

8. The bank is a signatory to the Banking Code.

Term 5.4 states: We will tell you the charge for any other service or product before we provide that service or product, and at any time you ask.

By stating the charge is for a service, the defendant is bound by the code to tell ‘make me aware of such’ me before they provide the service. It is implied in this that they are to give me the option of whether or not I want them to provide the service – assumption that you want the service is not implied.

[homershairdo]

DJTazz - if I understand correctly, LTSB are also counterclaiming you? If so, have you received their counterclaim papers etc - i.e. what they are claiming for?

[DJ Tazzz]

Hi Homershairdo,

No, Lloyds TSB would not be that foolish, the above information is what I have gathered from this site in order to submit a counter defence to the courts against Lloyds TSB. Even if they fancied counter suing me, they would already be thinking long and hard about it as I have just successfully won against them in a Miss-selling me PPI in which they settled.

[elsinore]

 

I am now as far as receiving an Allocation Questionaire along with Lloyds TSB defence. I have to return the AQ by August 8th along with my own defence.

 

Lloyds have not yet paid the court fee. and only have 10 days to do so. I am just a bit worried as to how far this will go.

 

Hello neildexter. Although you don't actually say so, it appears that LTSB have submitted a counterclaim. Is this so? If so, do you have details of the counterclaim?

 

I ask because at least two other claimants, jon700 and homershairdo, have received notice of counterclaims.

 

This may be a new tactic on the part of LTSB and, if so, it should be highlighted. They will use any ploy at their disposal to put off claimants. I can't for the life of me imagine what their grounds will be for such a counterclaim, unless any or all of you have an outstanding debit balance to be repaid.

 

Of course it could be a mistake. One can envisage an inexperienced clerk at SCM being handed a pile of claims to deal with and ticking the wrong box! Solicitors are not infallible ( see http://www.consumeractiongroup.co.uk/forum/other-institutions/12869-rich2568-citicards-interesting-development.html )

[homershairdo]

This may be a new tactic on the part of LTSB and, if so, it should be highlighted. They will use any ploy at their disposal to put off claimants. I can't for the life of me imagine what their grounds will be for such a counterclaim, unless any or all of you have an outstanding debit balance to be repaid.

Just to let you know that no, I don't have anything outstanding with LTSB, except a CC which always has the monthly payment made!

 

Cheers!

 

Homer

[neildexter]

Thanks everyone for the above information. This is really helpful.

 

As for a counterclaim all I have received is their defence. I do not owe Lloyds TSB any money. My account is in credit and I only have this account with them. The interesting bit is in your defence DJ Tazzz you put in there about "if you make mistake" they dont charge you the first time in the year. I have not incurred bank charges since 2003 until now. It was my first time in 3 years and they charged me. Its also not as if im claiming a lot back, my total charges since I opened the account have been £80.

 

Here is a copy of the defence they sent me:

 

Claimant Defendant

DEFENCE

1. The Defendant Lloyds TSB Bank plc ("the Bank") is a Bank is a Bank whose registered office is 25 Gresham Street, London, EC2V 7HN.. It is admitted that the Claimant has been a customer of the Bank at all material times.

2. By opening an account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with details of the Bank's charges, currently in a Leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include, but are not limited to, providing;

· cheques

· bank statements

· the facility to make payments by direct debit and standing order

· debit cards

· ATMs (cash machines).

3. By maintaining the account in credit, or within any limit agreed with the Bank, the customer may avoid most if not all charges. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank's own funds. If the Bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract. On page 1 of the leaflet, the Bank explains that "there are normally no charges for everyday banking at Lloyds TSB when your account is in credit.

When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement or where you use special services, such as copy statements, we will make a charge. This guide explains how these charges work, and when they will apply.

I f you want to use a service that we haven't listed, we'(( tell you the cost of that service before you give us the go-ahead".

4. There is no breach of contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank's loss.

5. The customer is given advance warning of charges being imposed; statements show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following month's statement. Customers are warned by letter when they go overdrawn or over their agreed limit without arrangement with the Bank. If the customer fails to remedy the position, and payments such as standing orders and direct debits are refused then again the customer is warned by letter.

6. The charges are fair and reasonable, and it is denied that they are unlawful.

7. The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charge are terms which relate to the price payable by the customer for a service provided by the Bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999, are not subject to the assessment of fairness.

8. In the premises:

8.1 the charges are for banking services, and are not damages nor a penalty;

8.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;

8.3 it is denied that the charges are unlawful or contravene any statute or regulation.

9. The Claimant's claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the Bank.

 

 

Hope this helps everyone as this defence looks different to what other people have received.

[DJ Tazzz]

Neildexter,

 

Well, I just read through your post of Lloyds TSB defence and it is pretty much the same as what they sent me. I think the first instance thing was only something they recently introduced such as the cap on the amount they will take from your account each month being £80. I have record of them taking far more than this in a few months in the early days of having my account. I personally would not worry about the defence as they will very likely contact you when they submit their allocation questionnaire or even before in light of your low claim.

[Bean]

Hello neildexter,

 

Thank you very much for posting the whole of Lloyds TSB / SCM's defence here. It is exactly the same as mine, received this morning. I am on a similar timeframe to you - I have to return my Allocation Questionnaire on or before 11 August 2006.

 

My claim is for >£5000 and respectfully asks the Court to consider whether or not additional consequential losses will apply to the scope of the claim. Due to the claim sum being over £5000 and provision of further information on consequential losses being necessary, I have the more involved N150 Allocation Questionnaire (rather than the N149) to complete.

 

DJ Tazzz - thank you for your posts here - I shall find them most useful. I think your ambition to post the whole of the process on this site is commendable but it would be specific to your claim and would not take account of the fact that this is shifting ground. The solicitors might be Martineau Johnson or Sechiari Clark & Mitchell or others, defence differs from claim to claim, timing of offers differs from claim to claim, their approach may differ (and has) over time, etc. There may be similarities between some claims, but not all, and that alone is a big help.