HFC - Starting with court action - Miss-sold PPI!!

[kate999]

Anyone?

[turtlesnapper]

Kate

the rate should be the rate charged by the card company and that is likely to have varied over time. Check it from old statements if you have them.

 

If the rate varied then you will need to do separate calculations for each period. e.g. the spread sheet you uploaded shows a rate of 24.9% But if part of the period between April 2000 and Mar 2004 was at a higher or lower rate then that period needs to be calculated at the rate applied.

 

Did you clear the card in 2004? or what happened after PPI stopped in 2004. Was the card used, or was it left dormant and payments made over and above? The answers to that may have an effect on what you claim for.

[ims21]

Hi Kate

 

Sorry...been out most of the day but would like to help so here goes.

 

The reason you see different takes on interest to be claimed is based ona number of factors. Before I go into my blurb I suggest you do some reading on "Interest in Restitution", "Unjust Enrichment" and what I call "The FOS Approach" (if you haven't already done so).

 

Much of this depends on the confidence of the claimant and the quantum of the claim.

 

The fos approach is simply to put the claimant back in the position they would have been in had the ppi not been included in the account. They instruct the lender to reconstruct the account as if ppi had not been included and that includes refunding appropriate interest charged when the card had a debit balance. If the removal of ppi at any time created a credit balance, then 8% interest is awarded for the period the account was in credit.

 

Take a look at the FSA handbook which is linked in the ppi stickies and have a detailed look at the examples in Appendix 2.

 

Now, if you are going the court route, the options are different.

 

Some may just claim back the premioums plus the contractual interest charged by the card company and be done with it.

 

Others will claim the above plus 8% stat int so that the 8% gives them some reimbursement for the loss of their money over a period of time.

 

Others will claim Interest at a rate that gets back the profits the bank would have made by having the use of the claimants money when in fact they should not have had that money.

 

This is where the case of Sempra Metals comes into play.

 

Having said that, some may find that using Unjust Enrichment/Interest in Restitution etc. takes their claim over the £5k small claims limit. A claim over £5k could (and I say could) mean that if the claim is defended and the claimant loses, there is potentially the issue of costs.

 

Some may then adjust their interest claim such that the claim becomes less than the £5K limit to ensure it is dealt with through small claims where costs are generally not an issue.

 

And to throw something else into the mix...If a claimant elects not to go to fos and goes straight for court and they lose, fos will not then take the case. If you go to fos and lose, you can still explore the court route.

 

I know there is much to consider and it is not necessarily an easy decision which is why much research and reading is required so that an infomred decision can be made.

 

Help and spport can be given whatever the claimant decides is best for them but I would always say that this is your claim and you need to be confident in your claim and the arguments around it. This may sound a bit blunt and if it does I am sorry. Please remember that it will be you in front of a Judge (if it actually gets into a court room)

 

Best regards

 

ims

[kate999]

ims -

thank you as always for your time and consideration-

I have read in the past and again information on interest. I am still finding it difficult to understand as maths is definitely not my forte.

Just to give you a brief understanding of the history of the account -

We went into financially difficult and the card defaulted in 2004. It was then SOLD to a DCA and we have been making minimum payments till 18 months ago. We requested the CCA and have never heard anything since.

The account has been passed around but the interest keeps adding and it never seemed to reduce.

 

Complicated one - any thoughts?

 

I was thinking of adding the contractual interest (20.9%) to each monthly PPI?

 

Thank you once again.

 

K

[ims21]

.........

 

Post edited by me as I realised I have some of the info requested....back in a mo

 

ims

Edited July 18, 2011 by ims21
me being dumb

[ims21]

Hi Kate

 

Sorry about previous post....fingers were working before brain was engaged.

 

The history of the account really doesn't have a bearing on the decision you make moving forward although I do unserstand it.

 

Unfortunately its not something that someone can tell you what to do. You have to be comfortable with your claim (whatever it is) because you have to work on the basis that you will have to present a case in court and present it confidently. The fact that it might not get into a court room is secondary....always work on the basis that it will.

 

Now if you are going for any rate higher than the rate charged on your account, you need to be conversant with the case of Sempra Metals.

 

As you are going back to 2000, it would be wise to familiar with S32(1)© Limitations Act 1980 and the case law of Kleinwort Benson -v- Lincoln City Council.

 

So, although court can give a quicker and higher payout, you have to do a ot of work. Fos is slower, you get a lower payout but they do all the work for you.

 

As I say, it is not something that someone else can make a decision about for you....you really have to weigh up a few factors and come to a decision as to what is best for you.

 

Regards

 

ims

[slick132]

Hi Kate,

 

I see you've already had some good input here, to help you decide how to proceed. However, I have something to add..................

 

If you are going to take court action when they fail to refund or respond on time, I think the actual rate of interest you apply is not so relevant in your case.

 

You're seeking interest in restitution as per Sempra Metals v Inland Revenue Commissioners so the rate can be a nominal rate and not necessarily one applied on the a/c.

 

The real issues in your case may be the age of the charges, with all of them being over 6 years. You will have to show that the normal 6 year limit does not apply and that you're allowed to claim the older charges under s.32(1)c Limitation Act 1980, as Ims has said in the last post.

 

I'd use 24.9% as already shown on your spready. Then focus on reading up on the case of Kleinwort Benson and of Sempra Metals. Ims is quite right, that you should assume any court claim WILL end up in court. You cannot rely on the bank backing down.

 

[turtlesnapper]

Interesting. I'm not sure that the statute on limitations need apply - if it did you need to apply for leave to commence action 'out of time'.

It seems to me , and I am not a lawyer, that Sections 140A and 140B of the CCA are a better route to go. Claims for incorrectly applied PPI were made retrospective and Sections 140A and 140B are not a claim in the sense of issuing proceedings through the court. They are a ground for making an Application for an Order whether or not proceedings are in existence - in other words it is not starting a court action.

 

140A enables you to make an Application to the County Court (cost £75) for a Judge to rule on whether or not the creditor (credit card company) acted Fairly - that may be through mis-selling of PPI or in acting unfairly in not considering your complaint that PPI was inappropriate to you. The section makes it very clear in the explanatory notes that the onus is on the Creditor to prove they acted fairly. If the Judge decides they did not then under 140A they must Order that this was unfair. That opens the door for a 140B ruling where the Judge listens to your arguments / evidence on what restitution (and compensation) should be and to make that ruling.

 

In my case Santander simply did not want to have claims for PPI refund going back to January 1999 heard by a Judge and settled . My arguments on level of refund are what has made the FSA and FOS go through their approach to settlement as it has now been realised that their approach was wrong and resulted in people being short-changed by, potentially, very considerable amounts.

 

It is also open to you to include the DCA in your application and for them to be bound and jointly liable for whatever the Judge rules.

 

I would certainly write to them and tell them both you have a section 140A and 140B Application being prepared and see what their reaction is.

[dx100uk]

never ever heard of this in all the years on here.

 

pers i'd stay with the tried and trusted method

 

dx

[turtlesnapper]

never ever heard of this in all the years on here.

 

pers i'd stay with the tried and trusted method

 

dx

 

FYI - This is not widely enough known about and is well worth reading and understanding because of it's apparent simplicity and effectiveness.

 

This will not allow me to post links so you will have to add the appropriate to links below

 

Copy of legislation quoted below is here legislation.gov/ukpga/2006/14/contents

OFT online examples of the use of section 140A and 140B - oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/unfair-rel-full

From 2006 Consumer credit Act

 

Section 19

 

Unfair relationships between creditors and debtors

 

This section has no associated Explanatory Notes

After section 140 of the 1974 Act insert—

“Unfair relationships"

 

140AUnfair relationships between creditors and debtors

 

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

(a)any of the terms of the agreement or of any related agreement;

(b)the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

©any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

(2)In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).

(3)For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.

(4)A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.

(5)An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).”

 

20 Powers of court in relation to unfair relationships

 

This section has no associated Explanatory Notes

After section 140A of the 1974 Act (inserted by section 19 of this Act) insert—

“140BPowers of court in relation to unfair relationships

 

(1)An order under this section in connection with a credit agreement may do one or more of the following—

(a)require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b)require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

©reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d)direct the return to a surety of any property provided by him for the purposes of a security;

(e)otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f)alter the terms of the agreement or of any related agreement;

(g)direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

(2)An order under this section may be made in connection with a credit agreement only—

(a)on an application made by the debtor or by a surety;

(b)at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or

©at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

(3)An order under this section may be made notwithstanding that its effect is to place on the creditor, or any associate or former associate of his, a burden in respect of an advantage enjoyed by another person.

(4)An application under subsection (2)(a) may only be made—

(a)in England and Wales, to the county court;

(b)in Scotland, to the sheriff court;

©in Northern Ireland, to the High Court (subject to subsection (6)).

(5)In Scotland such an application may be made in the sheriff court for the district in which the debtor or surety resides or carries on business.

(6)In Northern Ireland such an application may be made to the county court if the credit agreement is an agreement under which the creditor provides the debtor with—

(a)fixed-sum credit not exceeding £15,000; or

(b)running-account credit on which the credit limit does not exceed £15,000.

(7)Without prejudice to any provision which may be made by rules of court made in relation to county courts in Northern Ireland, such rules may provide that an application made by virtue of subsection (6) may be made in the county court for the division in which the debtor or surety resides or carries on business.

(8)A party to any proceedings mentioned in subsection (2) shall be entitled, in accordance with rules of court, to have any person who might be the subject of an order under this section made a party to the proceedings.

(9)If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”

 

Prospective

21 Interpretation of ss. 140A and 140B of the 1974 Act

 

This section has no associated Explanatory Notes

After section 140B of the 1974 Act (inserted by section 20 of this Act) insert—

“140CInterpretation of ss. 140A and 140B

 

(1)In this section and in sections 140A and 140B ‘credit agreement’ means any agreement between an individual (the ‘debtor’) and any other person (the ‘creditor’) by which the creditor provides the debtor with credit of any amount.

(2)References in this section and in sections 140A and 140B to the creditor or to the debtor under a credit agreement include—

(a)references to the person to whom his rights and duties under the agreement have passed by assignment or operation of law;

(b)where two or more persons are the creditor or the debtor, references to any one or more of those persons.

(3)The definition of ‘court’ in section 189(1) does not apply for the purposes of sections 140A and 140B.

(4)References in sections 140A and 140B to an agreement related to a credit agreement (the ‘main agreement’) are references to—

(a)a credit agreement consolidated by the main agreement;

(b)a linked transaction in relation to the main agreement or to a credit agreement within paragraph (a);

©a security provided in relation to the main agreement, to a credit agreement within paragraph (a) or to a linked transaction within paragraph (b).

(5)In the case of a credit agreement which is not a regulated consumer credit agreement, for the purposes of subsection (4) a transaction shall be treated as being a linked transaction in relation to that agreement if it would have been such a transaction had that agreement been a regulated consumer credit agreement.

(6)For the purposes of this section and section 140B the definitions of ‘security’ and ‘surety’ in section 189(1) apply (with any appropriate changes) in relation to—

(a)a credit agreement which is not a consumer credit agreement as if it were a consumer credit agreement; and

(b)a transaction which is a linked transaction by virtue of subsection (5).

(7)For the purposes of this section a credit agreement (the ‘earlier agreement’) is consolidated by another credit agreement (the ‘later agreement’) if—

(a)the later agreement is entered into by the debtor (in whole or in part) for purposes connected with debts owed by virtue of the earlier agreement; and

(b)at any time prior to the later agreement being entered into the parties to the earlier agreement included—

(i)the debtor under the later agreement; and

(ii)the creditor under the later agreement or an associate or a former associate of his.

(8)Further, if the later agreement is itself consolidated by another credit agreement (whether by virtue of this subsection or subsection (7)), then the earlier agreement is consolidated by that other agreement as well.

 

OFT case history of Unfair Relationships under section 140 (a) and (b) is at the beginning.

[kate999]

****UPDATE****

 

Ok here we go.....

I decided to see if I could get anywhere with fos before I decided to go down the court route with HFC - WHAT A WASTE OF TIME!!

Please note this is me trying to claim back miss-sold PPI on a Marbles credit card.

In early April I send off all the relevant paper work to fos to get this going - before they did anything I was advised of the huge waiting list and they would get back to me when it was my turn.

As I had been waiting a year anyway I decided to stick with it.

They eventually wrote to me a couple of months later asking for more info which I gave them by return, only to receive everything back at the end of July saying they wouldn't deal with it as I hadn't had a response from HFC!!!

AAARRHHH!!

I had told them numerous times that HFC refused to even respond to any of my letters - never mind getting a final response. What an absolute waste of 4 months - plus the year it had taken trying to get a final response from HFC. Obviously some numpty at fos hadn't even bothered to read what I had sent so there is no way I was going to wait another 16 weeks (fos timescale advice due to large amount of PPI complaints).

 

I have now sent another prelim letter including my schedule of charges to HFC. They have 2 more days to reply then I will be sending them a lba.

 

I also have an ongoing charges reclaim going on with HFC - and fos have dealt as badly with that as they have with this. I will start a new thread for that one as it is not PPI related.

 

Wonder if HFC bother to respond to anything I have sent them - I have had one letter form them in response to all mine in nearly 18 months!

 

Does anyone know where I can get hold of Marbles terms and conditions going back to 2001? I am going to need it for my court papers and have looked everywhere but can't find them?

 

Thanks peeps!

[kate999]

Ok guys - could do with advice on this one.

 

Here is my summary - I submitted my N1 and received a response from a solicitor at HSBC making an offer to repay the PPI. Which is great - but - they are only willing to pay interest up to the when the account was closed. Just to recap the account was opened in 2000 and defaulted and passed to a DCA in 2004. The PPI Charges were around £350 and they are only willing to pay around £30 in interest (as they will only pay till 2004). The are also refusing to pay interest in restitution (24.9%) and said the rate of interest they will pay is the "Annual Card rate of interest" 14.88%. As the claim is dated back to 2000 and I am claiming interest in restitution my claim was for nearly £2000.

 

I wrote back and refused their offer.

 

I have to complete my AQ by the 20/12.

 

At the weekend I received another letter from HSBC stating the following -

 

* They will only pay back the PPI and interest paid on the account. Which they state provides me with full compensation and restore the account to the position as if I had never taken the account PPI out.

* They do not understand what basis I am seeking compound interest and do not accept it.

* They do not understand why I am claiming interest in restitution - I quote -

"There can be no claim in restitution in respect of sums paid under a contract as was the case with your payments in respect of the PPI. In any event, you have not pleaded or explained any basis on which you have a cause of action in unjust enrichment."

* They do not understand how the Sempra Metals v IRC applies to my case (They have actually sent me the 77page copy of the judgement!)

* They are also stating that "if" I was entitled to compound interest in way of damages, Sempra Metal makes it clear that I need to prove I have actually made a loss, and that I have not provided any proof of this, or why I am am working on the interest calculations of 24.9%.

 

The letter is concluded by stating that their client will be put to the cost of preparing full legal submissions on this single issue alone - and that my view on compound interest can not succeed and they will recover the costs from me. They have advised me that I am acting unreasonably if I continued to reject their goodwill offer and litigate over the single issue of compound interest.

 

If I do not accept their offer and discontinue the proceedings, then I am asked to reply to their letter within 14 days setting out the reasons why I think I am entitled to interest in light of the Sempra Metals judgement they have sent.

 

All help and advice would be really appreciated on this one!

K

[ims21]

Hi

 

They appear to be suggesting that they are only going to pay back the amount that would be awarded by fos. In a court case you can claim interest in restitution for the unjust profits made by the bank on your money.

 

I'll get some help for you as regards the response you should make with the legalities of it all.

 

Regards

 

ims

[ims21]

Hi

 

They appear to be suggesting that they are only going to pay back the amount that would be awarded by fos. In a court case you can claim interest in restitution for the unjust profits made by the bank on your money.

 

I'll get some help for you as regards the response you should make with the legalities of it all.

 

Regards

 

ims

[kate999]

Brilliant ims - thank you.

I thought that the fos advice was they have to pay for the interest up to the date of claim, not when the account was closed? Or am I confused again?

Kx

[ims21]

Hi

 

Yes fos will order the payment of stat int up to settlement date...I think the sols are fobbing you off

 

ims

[steven4064]

I'm afraid what they are doing is instigating a game of 'chicken'.

 

I don't know what your interest claim amounts to but I know that it is way way less than their cost of instructing a solicitor/barrister. However, they are raising the spectre of costs to try and persuade you to drop the claim. This is usual bank practice. How you proceed depends on how strong your nerves are.

[dx100uk]

WELL AS THERE ARE 1000'S [opps caps] of successful reclaims

that HFC have paid to the reclaim date.

even where they have been told to give the extra months [on top] of the org

soc date, because they have dragged things out, they've been warned about that tactic & they've coughed too

 

it will be a very simple thing to include these in any evidence

the judge will just laugh at them

 

knowing HFC , they have seen the limited success some of the other co's have had with certain arguements

 

it is also wothy noting the £1.8M fine they got

 

i can also tell you, though ofcourse i am not permitted to release truecall phone recording with theFOS of recent

but i can tell you quite candidly, that the omb i have had convs with recently [i have one case still going with HFC

they are none too happy with the continued wriggling HFC STILL to this day perform on almost EVERY RECLAIM.

 

dx

Edited December 15, 2011 by dx100uk
sri typos - just got it after being away

[kate999]

Ok thanks for the input - I am assuming that you are suggesting that I sick to my guns and let it ride out?

Any suggestions as to what to include in my response?

K

[kate999]

Any help would be appreciated.

Kx

[ims21]

Hi

 

Have sent an SOS for you to DonkeyB

 

ims

[DonkeyB]

On board and just out of the pub. Will look back when faculties are restored.

[kate999]

Thanks guys!

[DonkeyB]

I recall a recent case on CAG where the Sempra argument was thrown out by a judge. Just going to look for it...

[DonkeyB]

Have a read of this.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?328695-Credit-Card-PPI-claim-using-Sempra-Metals-rejected-by-court