Moss v Yorkshire Bank ***WON***

[moss]

Hi Caro

I'm Mrs Moss wonder if I may ask you a question...LoL nothing iffy I requested a cheque to be sent back to us over 4 weeks ago now its a cheque I wrote out and was cashed the 18th of Oct but stupid Littlewoods catalogue who cashed it have no proof its from me but thats another story but they want a photo copy of it

I imagine the YB are dragging there feet rather than send it to us so I wondered would they still have the cheque at our branch if we went in and demanded it if you happen to know how long they keep your cheques for that would be great and hope its ok to ask.....Thank you

[caro]

Hi Mrs M. It's fine to ask but I'm afraid I've no idea of the answer. I've an idea that cheques are cleared in some central location though but I don't know why I think that. It might be worth posting a thread in the General forum to see if anyone can help.

[moss]

Thanks Caro

Did do that a few days ago but joined to another thread about Littlewoods but no replies as far as I know might try again could ask the bank staff reckon

[caro]

You could always send a SAR to Littlewoods, or ask the bank as you say.

[moss]

Well folks.

Iv' e had a copy of the banks defense Kirsty Ross has sent to the court, most of it i understand ok, points 1 to 7 are about the contract and the types of charges levied etc, then it turns to the legal stuff as follows :-

 

8. It is further denied that the charges were levied pursuant to a contract term requiring the customers to indemnify the bank within the meaning of section 4 of the unfair contracts terms act 1977. In the premises section 4 of the act has no application in these proceedings. further, reference is made to section 6 of the unfair contracts terms act 1977 which provides that the assessment of fairness of a term shall not relate to the adequacy of the price as against the service supplied in exchange.

 

(So are they saying that their contract with me doesn't require me to cover their loss so section 4 is not applicable.

also the bit about section 6 i can't find it in the unfair contracts terms act.)

 

9. It is further denied that by virtue of section 15 of the supply of goods and services act 1982 the amount of charges falls to be determined by reference to what is reasonable as the consideration for the service is determined by the contract. In the premises section 15 of the act has no application in these proceedings.

 

( so now are they saying that the charges don't have to be reasonable because the price is in the contract.)

 

10. It is further denied that the terms and conditions requiring the claimant to pay the charges were unfair terms within the meaning of the unfair terms in consumer contract regulations 1999 S.1 1999 No 2083 (" the regulation). Paragraph 1 (e) of the schedule 2 of the regulations provides that a terms requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation may be regarded as unfair. the charges are not compensation, but rather a fee for the service provided by the bank in extending facilities to the claimant, all as envisaged by the agreement in place between the bank and the claimant. further and without prejudice to the generality of the forgoing :

 

(1) The terms and conditions were fair having regard to the following matters :

 

(a) the cost to the bank of maintaining administrative systems relating to unauthorised overdrafts

unpaid cheques and direct debits and abuse of cheque and debit cards for the purpose of

keeping the level of overdrawing under review and controlled as far as possible;

 

(b) the increased risk of loss to the bank arising from such unauthorized transactions and the

associated cost of enforcement and recovery systems;

 

© the need to operate standard procedures and to set standard charges in order to avoid

the substantial cost of individual assessment in relation to each particular case;

 

(2) the terms and conditions complied with all relevant requirements of the banking code as the

banking code was in force from time to time.

 

Then the defense goes on to say I'm not entitled to anything, also there is no mention of a counter claim or any witnesses as yet.

So folks am i right in saying that their defense is that the charges are for a service so the unfair terms in consumer contracts regulations

1999 does not apply and the price of the service is in the contract so section 15 of the supply of goods and services act 1982 also does not apply ? what do you guys think.

 

I haven't heard from the court as yet but hope to get an AQ soon. oh and iv' e been looking for a copy of YB's standard terms and conditions and can't find one anywhere can anybody help ?

 

Thanks and happy new year to all. Moss

[moss]

Hi folks, as you can see from my last post YB are claiming that their Charges are not a penalty but a fee for a service, they seem to think if they can prove the service angle and because the charges are specified in the terms of the contract they can charge what they like, well i can't see how it could be argued that not paying for example a DD then writing to me telling me to put monies into my account or they reserve the right to cancel all standing orders and direct Debits, taking a £35.00 administration charge, £8.00 daily charge and another £20.00 charge next month is a service, surely this is the application of a penalty.

 

has anybody got a copy of YB's standard terms and conditions, iv'e searched my draws and the net and can't find a copy, if anybody would be so kind as to send me a copy that would be Great.

 

Regards Moss.

[moss]

I have today received a cheque for £1611.00 which is about half of my charges, i won't be accepting this and will be sending a letter of rejection covering the points they raise. I see that the defence that they have submitted is the same as in pjdudley69's claim so i'm not a bit worried and am going to press on regardless. I will post my rejection of offer letter a bit latter.

 

BFN Moss.

[moss]

Hi all,

As in the above post i have today had a offer from Neil Mckirdy at customer relations, the letter goes on about how i should run my account and that it is all my fault and that i should have known what the charges were etc. Then that if i won my claim they would counter claim for damages court cost and interest and finally the letter is without prejudice etc.

I am thinking of sending this in reply what do you guys think, and Caro i think you recently offered to pay YB's actual costs have i worded that bit ok

 

Dear Mr McKirdy

 

Thank you for your recent letter dated 4th Jan, offering £1611.00. I must inform you that I do not find this offer acceptable, please find your cheque enclosed.

As outlined in my earlier correspondence I explained that the charges you have applied to my account are contrary to the Unfair Terms in Consumer Contracts Regulations 1999. Further or in the alternative, I believed that your charges are a Penalty. Penalty charges are irrecoverable at common law.

In my original letter I informed you that I would start legal proceedings within 14 days, I would like to take this opportunity to inform you that a claim has been filed with the county courts, and as a subsequence interest pursuant to S69 of the County Courts Act 1984 at the rate of 8% per annum, has been added to the original amount bringing the sum claimed to £3972.65.

To stop any further costs being incurred it is in your best interest to refund in full the revised balance forthwith.

Further to your letter it is not disputed that it is my responsibility to maintain my account in credit or that my breeches have incurred cost to Yorkshire Bank. However what is in dispute is the level of the charges applied to my account. In April 2006 the OFT stated that the broad principles as applied to credit card default charges (i.e. that they were set at a significantly higher level than was considered fair) are likely to apply to standard agreements with consumers such as those for bank current accounts. Also in the recent BBC Money programme which investigated bank default charges, their "Bank commission" comprising two eminent business academics, Professor John Struthers of the university of Paisley, Professor Philip Molyneux of the university of Wales, Bangor, and an experienced banker, Ian Jarritt, formerly chief executive with Nat West, decided that the highest cost banks could justify for a bounced cheque was £4.50 and that for other items such as unpaid direct debits or dealing with unauthorised overdrafts £2.50 was the highest costs Banks could reasonably justify. Both figures are vastly lower than the charges Yorkshire Bank have applied to my account. This supports my belief that the charges applied to my account are unlawful and why I am claiming them back.

Further to your letter, you state that if I am successful with my claim you would make a counter claim against me for damages suffered by Yorkshire Bank as a result of my breaches of contract in failing to adhere to the terms and conditions of the account. Well in an effort to bring an end to this dispute without the need for court action I would be willing to amend my claim to reflect the actual cost to the bank that my breeches have raised, but be advised I would require disclosure of how the Banks costs were calculated. I think this would be a very fair resolution to this dispute.

 

Regards Moss

[funboy]

nicely worded...quoting a tv show is going to totally throw them off balance lol..so i guess this is a taste of what i can expect when my LBA expires and i have to get all legal on them...it should be interesting to see if the threat of a counter claim proves genuine or not

[moss]

there's been quite a few folk on here threatened with a counter claim but it never happens it's just another scare tactic. I don't know if i'm going to send the above letter with the TV bit in it yet, i'm waiting for some advice on that one.

 

Regards Moss.

[hoogie32]

Send it.

 

Why not - You havent made it up. - You are quoting an official enquiry into charges that was shown on National TV

[Michelle19]

Hi,

 

keep going wth it, step by step. The reply letters can be fairly off putting and full of jargon but you'll get there in the end. Yorkshire bank agreed to settle the full amount of charges (over £700) with me but only after I got as far as the small claims court, and as a cost saving measure without prejudice.

 

Shell19

[moss]

It's now a week past the deadline for YB to submit a defence so i rang Derby court to check and they have received one, also Derby court are processing everything within 5 days so should get the AQ soon.

 

Guys, what's the best way to avoid the months stay that YB will ask for ? because i think they have had plenty of time and if they get the stay it will probably be 3 months or more before they have to pay up.

 

regards Moss.

[moss]

Well I DON'T BELIVE IT . The court has lost my paper work I took my 3 N1's into court on the 29th Nov and i didn't get one sent back so i asked and they said don't worry they would be sending one in due course and because i had another copy i didn't need it anyway, then on the 4th Jan i got a copy of YB's defence so on the 11th I rang the court to see where my AQ was and they said it would be with me in a day or two, so today i rang again and they said they have lost all my paper work and i would need to send my N1 again with attachments.

So more work, lucky i made 4 N1's.

[sajabu2003]

How on earth can they have lost all your paper work I hope they don't lose my paperwork as it seemed to take forever and a day for me to sort it out haha :o I'll be watching your thread with great interest now! Hopefully the next news you receive will be good news.

 

Sarah.

[moss]

I have been to the court today, got soaked walking through Derby as you cant park outside the court. I gave them three new N1 copies and three schedule of charges copies, the lady behind the counter said it shouldn't hold up my claim and they would send the AQ as soon as poss, so no worries.

[caro]

Glad about that Moss. YB delay things enough without the courts delaying matters too.

[moss]

Caro can you help, iv'e now got my AQ and I'm going to change section G of the AQ in the bank templates library and drop the request for standard disclosure and attach the new draft order proposed by Bankfodder, but i have been watching with interest Kazzaw v Lloyds thread and the judges order concerning striking the defence out as an abuse of process and i was wondering if i could use both in the alternative.

something like this, though would i need case numbers and the judges name, also I'm not too sure about the wording. My AQ has to be in on the 5th feb so i have time to wait for a conclusion of the order made at Lincoln

 

In respect of my claim, I would just like to bring to the attention of the Court, details of Judgement recently made at Lincoln County Court which orders the following:

 

The Court of its own motion is considering striking the defence out as an abuse of process on the basis that it has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled." (dated 28th December 2006)

 

There is now a wealth of evidence that the Banks are reluctant to pursue into court a defence of the claims against them by any of their clients for recovery of unfair bank penalty charges, thus abusing the court process and wasting valuable court time.I suspect their defence is vexatious litigation on their part and Until they are prepared to defend themselves in court, I would hope that the Honorable Judge at the Court would take note of this information, for i belive such an order would bring a speedy conclusion to my claim and save wasting the courts time.

 

Thanks Moss

[moss]

Hi, have any of you guys got an original copy of your contract with YB if so does it mention breaches of contract, I'm just looking through the proposed statement of evidence to support the new suggested directions to attach to the AQ, and I'm having a bit of trouble finding some of the evidence and i just want to be ok with it before i send my AQ so if the judge agrees i will be ready . I have asked YB for a copy of my contract but nothing as yet and i only have resent letters from the bank in which they are very careful not to mention penalty's etc only unauthorised and charges are for a service. I think the new strategy is a brill idea but i just want to be confident before i swing into action.

 

Thanks Moss

[moss]

Allocation questionnaire submitted today, copy sent to the bank Monday just gone.

[JulesTools]

Good on you Moss,

 

Keep us posted

 

Jules

[caro]

Sorry I managed to miss your AQ questions Moss, although it looks like you managed to get things sorted. Did you go with the approach above? If so it will be fascinating to see what happens.

[moss]

Yes i left out the request for standard disclosure and attached a request that the judge consider the order below, i didn't use the other request for striking out the defence as i wasn't sure about procedure, so we will see what happens, the date for the AQ's to be in is 5th Feb.

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[moss]

Today i have had an offer for the full amount but no interest so i won't be accepting. The letter says i raised my claim in Northampton CC which i didn't and also that i should pay tax on the interest awarded and they haven't offered any.

[zebbydog]

Hi Moss

The Northampton bit is standard.As for the income tax bit.What they are saying is that should you receive any interest from them,then this would be taxable as unearned income.Just as it would if you earned interest on your savings except for tax exempt accs such as ISAs etc.You can bet on them informing the revenue if they do pay you interest.

 

 

 

 

 

 

 

If I have helped please click the scales bottom left