Guido T v Lloyds TSB ***DEFENCE STRUCK OUT - WON****

[GuidoT]

Last month I was charged £90.00 by Lloyds for going £1.53 overdrawn, I did not even receive the usual computer generated letter advising me that I had gone overdrawn, just received advance notice on my statement.

 

Penned a letter to Lloyds requesting that they do not deduct the sum, received a letter back stating they were investigating the matter. In the meantime they deducted the charges and then Lloyds advised me (they bothered to do a letter this time) that they would be charging me £30.00 again for going overdrawn. I went overdrawn because they deducted the £90.00 of charges they were investigating. A week later Lloyds followed up with a letter advising that they would not be refunding the £90.00 charge.

 

So I thought I would do a little research and came across this site.

 

I have abstracted the charges from my statement back to 1994 and this totals £1,284.00. I realise that I have a limitation problem, but I will argue this on the basis of deliberate concealment pursuant to the Limitation Act 1980.

 

To this sum I have added contractual interest at 17.04% which equates to £1,713.10. I could have used the statutory rate of 8% but this reduced my claim by £909.10, however I will plead the statutory rate in the alternative when completing the Claim Form. I have not bothered with the interest on the charge interest as this calculation is a lot of work for not too much return.

 

Thus a total of £2,997.10. I feel I have nothing to loose by going for the maximum sum that is reasonably arguable, providing I stay under the £5,000.00.

 

I have drafted the preliminary letter which I will send as soon as I have received confirmation that my parachute bank account has been opened.

 

This site is useful in that it gives you the confidence to pursue your case to the end, knowing that you are quite likely to be successful.

 

Uncertainty is one of the major difficulties when pursing matters such as these. This site allows you to know the other sides tactics in advance, which is extremely useful in terms of knowing how to deal with them and how long you should hold out for a settlement (in this case until the end).

[GuidoT]

Preliminary letter issued no response from from Lloyds, issued LBA for circa £3,500 (found a few more charges) today.

[BARTY]

Good luck!

Barty:)

[GuidoT]

No response to LBA. Claim form and particulars now complete and will issue this week.

 

I am having severe difficulties opening another bank account. On checking with Equifax, I have 3 CIFAS entries dated March 2006 connected to me, relating to a person that used to live in a property that I lived in 6 years ago.

 

I have tried with Cooperative and Capital to get them to inform Equifax to remove the entries, but being a bank, they of course said no. I think the Banks and or Equifax need some more pressure.

 

Does anyone have experience with the removal of entries of this type?

[GuidoT]

Received a letter from Lloyds today advising that they would be crediting £500 to my account, no mention of any terms

 

I will take that for now. They should receive the sealed claim form in the next few days.

 

Will donate to CAG in the next few days.

[GuidoT]

Received sealed copy of claim form today, service deemed to have occured on 14 December 2006.

 

Still not received the payment into my account.

[GuidoT]

Quick update:

1. Received the £500 around a week ago

2. Donated to CAG

3. Received another £60 of charges for December for going £37 over my overdraft for 2 days - should be more careful

4. Acknowledgement of Service should be issued today by Lloyds, unsurprisingly not received

 

My thread is awfully quiet, feel a bit lonely .

[RedDeath]

Guido,

Keep going with the claim. I am adopting an all or all approach (as opposed to all or nothing). Not sure about claiming so far back but you seem to know what you are doing. Would be interesting to know if they do cough up the whole amount.

Good luck with your claim, and don't stop until they have credited the whole amount back. The donation to CAG was really cool, I am sure it will help the site go on for longer and help other people claim their charges back. Once again, good luck! And now your thread is not so lonely!

[GuidoT]

Thank you Red, it is good to know I now have some company. I wish you well with your claim, just stay with it, it will be worth it in the end.

 

On an entirely different note, can anyone tell me how to attach an Excel document to a PM or if indeed you can.

[RedDeath]

Certainly not alone guido (italiano? ITALIA CAMPIONE DEL MONDO) sorry had to get that one in. Can't help you with attachements but if you need a hand with excel just pm and we'll sort something out. My job involves using Excel on a daily basis, so i can get around it quite well.

[GaryH]

My thread is awfully quiet, feel a bit lonely .

 

We're here Guido!

 

Your claim is coming along nicely and you've clearly done your homework, which is great. Perhaps people have'nt posted becouse they think you're doing fine as it is? Anyway, we're here if you need us.

 

Good luck!

[GuidoT]

Thank you Gary for your words, you do a stirling job here keeping an eye on all us Lloyds claimants.

 

By way of further update, I received Notice that an Acknowledgement of Service has been filed today and that they intend to defend all of the claim, usual nonsense.

[GuidoT]

Received today (rather promptly) allocation questionnaire and the standard 9 point defence drafted by our friends at SCM by a rather aptly named Ms J Storey.

 

Has anyone bothered to Reply to the defence? If yes could they let me know what they have stated so that I can consider whether to respond.

 

Surprisingly, my court is very efficient, they received the defence on the 28 December and the issuing Notice was drawn up the day following.

 

AQ to be returned by the 15 January.

 

Here is the defence in all its glory:

 

"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.

If you want to use a service that we haven't listed, we'll 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."

[GaryH]

Hi Guido T,

 

Same old defence as usual, then. No need to reply to it. I suppose you could if you wanted to, but a replying to a defence is not usual practice in small claims cases.

 

Have you read about the new stratagy for the AQ? Heres the thread, its definately worth doing - http://www.consumeractiongroup.co.uk/forum/general/53570-new-strategy-allocation-questionaires.html

[GuidoT]

Thank you Gary, just like to get the last word in, however I think the New AQ Strategy will assist along these lines, thank you for bringing my attention to the link, I will direct others to it too.

[upton11]

Dera Guido T

 

You are not alone, I am a lonely threader too and when I saw GaryH's reply to your comment I too felt cheered up. I do however join in with other people's threads, but mine thread looks a very similar to yours.

 

Finally i am totally with GaryH and you on the new AQ approach and feel very envious that I did not know about it until after i had sent mine in. I am directing everyone to it as well

 

Regards fellow solo threader

 

Paula

[GuidoT]

Hi Paula - Thank you for adding to my thread, I feel it is becoming a little popular now.

 

I have completed the AQ and attached the draft order as the New strategy for AQs (in anticipating of speeding matters up) and was ready to send tomorrow in the post. However, I then looked at your thread and saw reference to Kazzaw and looked at post 15 and was most surprised to see such an order and thought should I hold onto my AQ for a while? I have until the 15th Jan to return it.

 

Lloyds will react to this and probably change their overall litigation strategy, I suspect. Just like they did when the courts saw through their delay tactics relating to the one month settlement and then they stopped ticking that box.

 

The bank should not be underestimated, there are some very big thinkers within it. However, it is difficult to predict what their change of strategy will be. More than ever now we need to ensure that we pursing our claims properly, eventually it is inevitable that someone's claim will be properly defended.

 

To be honest I am more comfortable when we can predict what Lloyds will do. The unknown is not helpful. Do not get me wrong through, it is good that the banks are being discovered for what they are.

 

Kazzaw's order is dated 28 December 2006, SCM have 14 days to respond, it is therefore unlikely I will know Lloyd's response prior to issuing my AQ.

 

Does anyone have any views on the matter and whether we should include something in our AQ regarding Kazzaw's order?

 

For what it is worth, my own view is that it maybe a bit early until we know Lloyds' reaction is to Kazzaw's order. However, it would be a bit boring though if they just paid up, as I suspect they probably will.

[GaryH]

The bank should not be underestimated, there are some very big thinkers within it. However, it is difficult to predict what their change of strategy will be. More than ever now we need to ensure that we pursing our claims properly, eventually it is inevitable that someone's claim will be properly defended.

Could'nt agree more.

 

The way I see it, they've got two choices. They will either start paying up in the early stages and perhaps close peoples accounts as Alliance and Leicester do, or they'll come out fighting and pick off perhaps what they perceive to be the weaker or ill-prepared claims. Even if they defended only 10% of them - assuming they won most of those - this would give them back some credibility and give their publicity machine's something to work on. Of course if they lost most of them then it could mean disaster for them.

 

I think we should now be using the new AQ strategy as standard practice. If they do choose to start defending we need to make it as uncomfortable for them as possible.

 

This is obviously just my humble - and speculative - opinion.

Does anyone have any views on the matter and whether we should included something in our AQ regarding Kazzaw's order?

As I understand it, there is something being worked on in this regard. Its a fine line to tread though - that order was not what you'd call ordinary and some judges might not see it the way that the one from Lincoln did. Anything that does happen is only likely to be published on the site after Kazzaw's case has been settled though in any case.

[GuidoT]

Thank you Gary H for responding and providing me with some reputation points.

 

I am going to post my AQ today. Do not see any point in waiting if the outcome of Kazzaw's case will not be known for a while.

[upton11]

Guido Hi

 

Did you invite the judge to use the 'new' directions.

 

I wholeheartedly agree with your point of not underestimating the Banks - that in my opinion would be utterly foolish.

 

I think we will see fairly soon whether Kazzaw's Directions are a one off. If they are not, I would expect to see a few more in the next week or two -

 

If that happens we may be able to assume that some sort of internal memo has been issued in all the different circuits.

 

Regards

 

Paula

[GuidoT]

Hi Paula - Included the new draft order as part of my AQ, lets us see if the judge adopts it.

 

I do not think the judge's directions in Kazzaw are a one off. DJs are not in the habit of drafting orders like that without carefully considering what the number of claims this effects and the implications. It would not surprise me if the DJ discussed it with other judges.

 

In any event Lloyds will probably not want to hang around and face such an order again, they should change strategy quickly. Lloyds previously reacted quickly to the judges order relating to the AQ one month stay matter and that has no where near the potential implications of Kazzaw's order.

 

Did I read somewhere that you are / were a lawyer?

[upton11]

Hi Guido

 

Yes I am, but i specialise in employment - civil is not my bag at all, which is why I use this site. You write like lawyer yourself, are you?

 

Regards

 

Paula

[GuidoT]

Hi again Paula

 

Yes employment law is a whole different ball game. I am not a lawyer, but I draft and review documents for legal proceedings relating to disputes.

 

I see that there is another Kazzaw order:

http://www.consumeractiongroup.co.uk/forum/natwest-bank/56900-judge-striking-out-defence.html

 

Anyway, much more importantly, my thread has developed a second page - I am so pleased.

[upton11]

Oh get you, you 2 pager!! An epic in the making i am sure - thanks for the link.

 

Construction disputes hmmm - you must be really busy at the moment. Norwich is developing quite rapidly, so I guess other cities must be doing the same.

 

Regards

 

Paula

[GaryH]

I am not a lawyer, but I draft and review documents for legal proceedings relating to construction disputes.

That must be quite relevant to the topics on this board then. I bet the issues of penalty clauses come up quite often in construction disputes.