Has this happened to you?

[jimfishybob]

Having been succesful in reclaiming my charges a few months ago all has been hunky-dory.

 

Till today.

 

They've called me to say that as I am now £3 over my overdraft limit, they require me to hand back my debit card and cheque-book, (which i've never used).

 

I explained I believed this was retaliatory and they assured me this wasn't the case. It's just utter coincidence that while I was paying them for my minor transgressions they turned a blind eye to them and as soon as I fought back they decided £3 was a lot for them to stomach.

 

Am going to go over my statements and find out where i've been charged for genuine breaches as opposed to charged for being charged. Am also going to close the account as I can get the facilities they're denying me elsewhere.

 

I'm interested if a similar thing has happened to anyone else as this would blow their, "we wouldn't get involved in tit-for-tat disputes and it isn't retaliatory" argument out of the water and I can fight it on that front.

[techtalkonline]

Having been succesful in reclaiming my charges a few months ago all has been hunky-dory.

 

Till today.

 

They've called me to say that as I am now £3 over my overdraft limit, they require me to hand back my debit card and cheque-book, (which i've never used).

 

I explained I believed this was retaliatory and they assured me this wasn't the case. It's just utter coincidence that while I was paying them for my minor transgressions they turned a blind eye to them and as soon as I fought back they decided £3 was a lot for them to stomach.

 

Am going to go over my statements and find out where i've been charged for genuine breaches as opposed to charged for being charged. Am also going to close the account as I can get the facilities they're denying me elsewhere.

 

I'm interested if a similar thing has happened to anyone else as this would blow their, "we wouldn't get involved in tit-for-tat disputes and it isn't retaliatory" argument out of the water and I can fight it on that front.

 

This is just so unbelievable, so why am i not suprised by it? £3 and your out mate! They are probably looking at it from the fact that if you start getting charges again, you will start recovery action all over again. Therefore, by closing the account straight away, they are removing that threat!

 

Regards,

Colin.

[jimfishybob]

In their defence they haven't actually closed the account.

 

They've stated that as I evidently can't handle my account properly, (I've gone £3 over remember), they have no choice but to remove my Visa debit card and chequebook. I explained that this was obviously retaliatory action but they disagreed saying that any previous refunds were a gesture of goodwill to try and get me out of the cycle of charges on chrarges. The conversation then went something like:-

 

ME:- "I may as well pay off the overdraft and move my account as I can get the services you're recinding elsewhere"

 

SMILE:- "Don't do that as you will still have Electron services"

 

ME:- "That's next to useless"

 

SMILE:- "It gives you the same services as your debit card"

 

ME:- "Then why bother swapping it?"

 

SMILE:- "'Cos then you can't write cheques"

 

ME:-"When was the last time I wrote a cheque?"

 

SMILE:-"2002"

 

ME:- "Then is it fair to say that the ability for me to write cheques is immaterial and the Electron card will reduce the services available to me, if it doesn't then there is little point in swapping it and if it does I will just go somewhere else?"

 

SMILE:- "Er..."

 

 

There were several other threads of conversation that resulted in them saying "Er...." but it would be fruitless to list them here. Suffice to say they uttered the words, "terms and condiitons" a lot, and I laughed and used the word "lawful", a lot.

 

The lady I was speaking to, (I have her name and direct number), was very pleasant and quite obviously didn't believe in what she was saying as she contradicted herself quite a few times. Of course when I referred to these contradictions, she denied them, luckily, I recorded the call.

 

I then recieved a secure message from one of their debt management managers, which told me how my overdraft would reduce over the next month or so.

However, in this mail there was a little snipe at the end, "Just to let you know we can ask for any money owed at any time". I replied explaining that as the reduction of the overdraft was at my request I was a little puzzled as to why she felt the need to include that nugget of information, espacially as it just isn't true.

 

My plan is, to have my salary paid into the smile account and move it all into another account the same day, that way, I am not breaking their t&c's as I am still making regular deposits, (so they can't recall the OD), I am still reducing the overdraft and i'm not using the account.

[jimfishybob]

Dear Sir/Madam,

 

 

On the 12 October 2006 I received a call from your debt management department requesting that I return my Visa debit card and chequebook. Please find the card enclosed, it was noted during the call that I have not used my chequebook since issue and therefore it can be assumed I am not in possession of it. Please accept this letter as notice that this is the case.

 

 

I put it to your representative that this request was a retaliatory action as I have recently reclaimed charges relating to 'unauthorised' overdraft use, unpaid direct debits and so on. She assured me this was not the case and that in each instance of my transgressions my account is referred to the debt management department and a decision is made on how to proceed.

 

 

She went on to explain that the timing of this request is due to the fact that on this occasion my own actions have resulted in the transgression, (as opposed to it being a result of charges). This would suggest that either:-

 

 

a) All previous transgressions have been the result of bank charges unlawfully levied on my account.

 

 

Or

 

 

b) My previous transgressions have been allowed to continue while you were able to charge me for such and consequently the request for the return of my stationary is a retaliatory action.

 

 

Returning to your claim that all of my transgressions are referred to the debt management department. You will recall that on 19th May 2006 I submitted a 'Subject Access Request' under Section 7 of the Data Protection Act 1998 requiring disclosure of any data relating to me. In this request I specifically requested details of any manual intervention in relation to my account. No such information was forthcoming. Therefore I can only conclude that either:

 

 

a) You are in breach of your data protection obligations as you have failed to supply me with ALL the data held about me.

 

 

Or

 

 

b) Your representative was misinformed, there is no such referral mechanism and the decision to rescind certain services is solely the result of my reclaiming charges.

 

 

Please let me know by return which of these is the case, if it is the former, kindly rectify the situation by providing me with copies of all internal correspondence relating to me and details of all manual intervention.

 

 

On the same day, (12th October 2006), I received a secure mail from Val Mcarren detailing how my overdraft facility would be reduced over the coming months. As an aside, the mail included the assertion, “Just to let you know, we do have the right to ask you to pay back the money you owe at any time”.

 

 

This is a puzzling assertion for two reasons. Firstly the reduction on the overdraft was at my request, consequently I cannot understand the need for such an intimidatory statement, (which it was clearly designed to be). Secondly, I cannot deduce from where Val draws such an assertion. I can only assume she is referring to the rights granted under The Consumer Credit Act 1974 (section 76(1)) but of course this is not applicable according to paragraph 2(a) of the same.

 

 

I hardly need remind you of the Financial Ombudsmans' stance on retaliatory action in the light of unlawful charge reclamation.

 

 

I look forward to your response.

 

 

 

Sending Monday.

[dave]

Nice!

[jimfishybob]

Ta.

 

(I'm genuinely flattered at your approval)

 

(Though I am rather drunk)

[lickthewallfatboy]

this must really be starting to get to them.....they've really spat out the dummy,haven't they?

[jimfishybob]

Yup, I suspect there is something bigger at work here, just need to try and find out what it is.

[sirowealot]

Great letter! Any response yet? I'm going to have a pop at Smile in a bit once I've got my parachute account sorted, and finished the existing claims I've got going, so I'll be watching your thread with interest!

 

SirOweALot

[jimfishybob]

Nah, no response yet.

 

Though that could have something to do with the fact I forgot to send the bugger.

 

Gone today.

[sirowealot]

easily done, just don't make a habit of it!

[glynisd]

Smile tend to do that sort of thing. In my case they had already "downgraded" my account months before I started to pursue them for my charges.

 

I had "transgressed" a couple of times (Smile refusing to honour direct debits that would have taken me £3.50 over my limit and at the same time adding charges that actually took me £12.00 over said limit then add on the daily charges - we all know the routine) a year or so ago and, when debit card was due to expire, the new one failed to arrive. I rang Smile to find out where my card was and I was interrogated by a snotty young lady about the direct debits that they had refused during the previous months and asked to account for the way I was conducting my account. She spoke to me like a wayward 5-year old who'd been naughty! I pointed out that, in all 3 cases, the offending amount was no more than about £4 and that Smile had made the matter much worse with their disproportionate charges. I told her that I was less than impressed with the way Smile had handled my account.

 

The upshott was that she insisted I return my chequebook and debit card and she would send me an electron card to ensure that I used my account more responsibly. Touche - it was their ball and they were taking it home!

 

This didn't affect my banking all that much - like you I don't write cheques anyway and most shops take electron. The thing that bugged me was the way I was treated - I'm a professional, have 2 degrees, and am in my 40s and here I am with some snotty lass half my age talking to me like I'm a wayward toddler.

 

It was at that point I decided to take my business elsewhere and chase Smile for all my money back.

 

I suppose your experience could be "punishment" for daring to challenge them (and winning) but, as I said, it seems to be their practice anyway.

 

The letter I received when they refunded my account told me "you must not go overdrawn without permission again". Not much chance of that - I transferred the remaining money into my NatWest account and have left a small balance in my Smile account to keep it ticking over. I shall close the account when it suits me, not them!

[glynisd]

Sending Monday.

 

Love it!!:grin:

 

Can I steal this if ever the need arises?

 

glynisd

[jimfishybob]

Of course.

[glynisd]

Of course.

 

Might be sooner than I thought! I've sent them a message to ask for a new bank card and pin and have been told that I would have to telephone them to discuss the matter because of the way I have been managing my account!

 

Considering the fact that the refunded charges cleared my entire overdraft and left me with a credit balance, it could be said that they were the ones who had been mis-managing my account, not me.

 

Have you had a response to your letter yet?

 

glynisd

[jimfishybob]

No, nada.

 

They are really begining to get on my t*t-end now.

 

Yesterday, they refused a £12 DD payment as it would have taken me over my OD limit. Fair enough, I'm reducing my OD and this was an oversight as i'd forgotten to be honest. What grates though is that they then slapped on a £25 charge immediately for not paying it and this took me over anyway.

 

Looking back, they did exactly the same thing a month ago, this took me over my limit and I incurred charges.

 

Had they adhered to the banking code and given me 14 days notice of the charges, I wouldn't have gone over my limit, wouldn't have incurred the charges and therefore the payment would have cleared.

 

To top it off I recieved an email saying they were worried about the way my account was being run. Specifically in regard to DD's and SO's. As I have not replied to their previous communications if they had to keep returning them they would have to take away this facility to stop me incurring charges.

 

How kind.

 

In response I wrote back saying that coincidentally, I was also concerned with the way my account was being run and that there seem to be flagrant breaches of the banking code. Had these breaches not occured then there would be no problem. Also, I think you'll find it's me waiting for a response from you.

 

T***S!

 

Will let you know the response, (if any).

[glynisd]

No, nada.

 

They are really begining to get on my t*t-end now.

 

To top it off I recieved an email saying they were worried about the way my account was being run. Specifically in regard to DD's and SO's. As I have not replied to their previous communications if they had to keep returning them they would have to take away this facility to stop me incurring charges.

 

T***S!

 

Will let you know the response, (if any).

 

That's exactly the way they treated me - in my case it was a £9.99 direct debit that would have taken me £4 over my limit!

 

The thing that bugs me the most is the way their staff talk to you as though you were a wayward 5 year-old having privileges withdrawn for being naughty!

 

So, our crayons taken away and bed without any supper for us then eh?

 

glynisd

[POCA]

"Just to let you know we can ask for any money owed at any time". I replied explaining that as the reduction of the overdraft was at my request I was a little puzzled as to why she felt the need to include that nugget of information, espacially as it just isn't true.

 

 

I always believed an overdraft to be repayable at any time, on demand by the lender.

 

Anyway, I think I may go and hit Smile now

[jimfishybob]

This is in no way conclusive, but, the CCA section 76 states monies can be recalled on a lending agreement if the it is a fixed term loan.

 

However, paragraph 2 of the same section says that if there is no fixed term, (i.e. an overdraft), then this does not apply.

 

There may be some ammendment I've missed but i'm not going searching for it, they can tell me if they think i'm wrong. (so far, they haven't).

[POCA]

I'm just casting my mind back to my contract law classes.

[jimfishybob]

Then you no doubt know more than me, however, I would still like them to prove it. I can quote statute where it says they can't, they only have to show me where they can and i'll leave it.

[POCA]

I'll go have a root around. I'll look for an answer too

 

And having looked, the position is this:

 

According to common law an overdraft is payable on demaned: Rouse v Bradford Banking Co (1894).

 

However, this has been modified such that reasonable period of notice must be given: Cripps & Son Ltd v Wickendon (1973). This has been reaffirmed in Bank of Baroda v Panessar (1987). Since this is post-Consumer Credit Act I would suggest that the common law principle remains and overdrafts are repayable on demand with reasonable notice.

[jimfishybob]

Thanks for the info, (though it may not be what I wanted to hear), will have a read of the caselaw when I have a little more time.

 

It's immaterial really as that's not the issue and if they want to take their bat and ball home so be it.

 

It's the pontificating manner of bank staff that gets my goat and I like listening to them trying to get out of the corner they've painted themselves into.

[jimfishybob]

It turns out it's my mistake:-

 

Hello Jimfishybob

In reply to your query about charges I would advise that the fourteen day 'notice'period only applies to account charges.Fees such as those for unpaid items,stop payments and copy statements etc are payable as and when

incurred.The fee of £25 is standard and applies to all unpaid items irrespective of the amount and whether or not the customer has sufficient funds in their account to cover it.I am sorry you did not receive a reply to your message of the 12th October.The 'repayment on demand'clause is included in all Bank overdraft facility letters although it would only be

applied if the conduct of an account was no longer satisfactory to th Bank Regards xxxx

 

Apparently, them not paying my DD's is a service they offer,(not an account charge as I suspected), and consequently I should be charged for it immediately in the same way I would be if I stopped a cheque, for example. It all makes sense now.

[jimfishybob]

I replied yesterday asking them if they're suggestion that I requested this service was serious, they replied this morning saying, 'yes'.

 

Have just sent this:-

 

If I understand correctly, your argument is that the process of you NOT paying a direct debit and then charging me £25 immediately for this non-payment, thus incurring further charges is a service I have requested by default and consequently is not covered by the banking code?

I would argue the nomenclature is irrelevant. By it's nature this is an account charge ans IS subject to the provisions of the banking code. If I said I was a duck that wouldn't make me one. (Flippant, I know, but your argumnet is, frankly, ludicrous).