slipwaypd v Lloyds TSB ** WON **

[slipwaypd]

Hi everyone, this is my first thread on this forum, wish I'd discovered it sooner as I could've saved my self a bit of hassle, I filled out my claim against Lloyds TSB using Money Claim online. Nothing further has been sent by me as I wasn't aware I had to send anything.

 

As you are limited to how many lines and words you can use on the online form I couldn't make my POC more detailed so would admit with hindsight that they are probably vague. I also didn't put my account number on so thats proably a double boobie on my behalf.

 

I've got the stock response as detailed on the LTSb Defence - can anyone help/advise? thread and wonder where I go now. I'm determined not to let the bank of the hook but am finding it hard to find my way around this site. Where for example do I find the MCOL Template?

What is SC&M?

How do I make an amended claim?

Would it be better to make a paper based claim rather than online?

 

Any help or pointers would be appreciated.

[Michael Browne]

To amend your claim you need form N244 (£35 fee unreclaimable) here:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/41901-form-n244-application-notice.html

 

With regard to the N244 -

Top left hand box:

1. Tick c), without a hearing

Leave the rest blank

Part A

intend to apply for an order that:

amends my particulars of claim

because:

my particulars of claim did not state the statutory provisions on which my claim relies,

 

Part B

Tick evidence in part c

Part C

Please find attached to this application my proposed new particulars of claim, amended to include the statutory provisions on which my claim relies , as well as aschedule of the amount claimed in respect of penalty charges levied by the defendant"

 

Send N244 + 3 N1 + 3 schedules + £35 fee to the court. They will send 2 back, 1 of which you serve/send to the defendants and confirm to the court you have done so.

 

N1 PARTICULARS OF CLAIM

 

1. The Claimant [has] [had] an account (XXXX Account No) with the Defendant which was opened on or around Date [and closed on or around date]

2. During the period in which the Account [has been] [was] operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

5. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982.

6. Accordingly the Claimant claims:

a) the return of the amounts debited in respect of charges in the sum of £XXXX and any interest charged thereon;

 

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

[slipwaypd]

Firstly Michael, thank you very much for your response.

 

Didn't mention in my first post but I have an Allocation Questionnaire, what do I do with this?

[Michael Browne]

When does it have to be returned by?

[GaryH]

You did'nt say exactly what you put as your particulars. If you used the proper template you may not even need an amendment. Have a look at this thread first - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/47344-lloyds-defence-claim-vague.html

[Michael Browne]

Good point, but:

 

 

I couldn't make my POC more detailed so would admit with hindsight that they are probably vague

.

and

I also didn't put my account number on

and

.

Where for example do I find the MCOL Template?

 

didn't sound promising!!

[GaryH]

Fair enough. That'll teach me to skim read.

[slipwaypd]

When does it have to be returned by?

 

 

Has to be returned by the 12/12/06, still not sure what to do with this.

 

With reference to the other points raised, I followed the Which magazines format of claiming which although informative didn't go into the amount of detail required for a successful claim. As I said earlier I wish I'd discovered this site earlier.

 

Oh and by the way thank you very much for your advice so far, its made my course of action much clearer, going to download and fill the required forms in tomorrow (Sunday) and go to the local court on Monday.

 

One final question, if I may, do I need to put in my POC how much I was overdrawn and for how long for every amount charged as Messrs Sechiari Clark and Mitchell have indicated that I should 'identify each charge, the date and the amount of the charge and why the Claimant in each case alleges it is a disproportionate penalty and thus unlawful'.

[Michael Browne]

Do I need to put in my POC how much I was overdrawn and for how long for every amount charged

No, just the schedule

 

Going to download and fill the required forms in tomorrow (Sunday) and go to the local court on Monday

.

 

Good idea. Be nice to the court staff and they may seal the new documents while you wait, which would mean you can send copies to SCM immediately

 

AQ has to be returned by the 12/12/06, still not sure what to do with this

.

 

Ideally serve the new POC's first, but the AQ must be returned to reach the court before the 12th. In Section G mention the amended POC

[GaryH]

Just out of interest, what did you put as your original POC?

[Michael Browne]

This is what Which suggests as POC's:

 

The bank charges which have been applied to my account are unfair

under schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999 (the regulations), which states that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a

disproportionately high sum in compensation’. In this instance the bank has charged me an amount which is not proportionate to the amount borrowed.

 

The amount charged by my bank is a penalty charge, which, under the

law of penalties, is ‘extravagant’ and therefore unlawful.

 

Under the law of mistake my grounds for restitution are that the bank automatically debited the amount of the charge from my account and was not legally entitled to do so.

[slipwaypd]

Just out of interest, what did you put as your original POC?

I would like to claim from the defendant the sum of £516 in charges applied to my account as a result of me having 2 unpaid direct debits, 1 unpaid standing order and for exceeding my overdraft on 7 occasions. These charges have been applied to my account between February 2005 and September 2006.

The bank charges which have been applied to my account are unfair

under schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999 (the regulations), which states that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a

disproportionately high sum in compensation’. In this instance the bank has charged me an amount which is not proportionate to the amount borrowed.

 

The amount charged by my bank is a penalty charge, which, under the

law of penalties, is ‘extravagant’ and therefore unlawful.

 

Under the law of mistake my grounds for restitution are that the bank automatically debited the amount of the charge from my account and was not legally entitled to do so.

 

 

In my communications with the bank I had itemised the charges together with dates and amounts as well as my account number. I assumed that the POC I've included above on my Claim form and my letters to the bank would make up my claim and be read together thus negating the claim by SC&M on their defence that I'd failed to identify my account or how the sum of £516 was arrived at.

 

When I redo my POC would you recommend using the Which wording or the wording as used on the templates on this forum, an example of which is given by Michael further up this thread?

[Michael Browne]

I assumed that the POC I've included above on my Claim form and my letters to the bank would make up my claim and be read together thus negating the claim by SC&M on their defence that I'd failed to identify my account or how the sum of £516 was arrived at.

 

 

This is what lots of people make the mistake of assuming. The trouble is the Dpa request, prelim and LBA letters are nearly always sent to a variety of addresses and are almost certainly never collated together nor, even if they are, passed to the banks solicitors, who merely have the MCOL claim and no schedule.

 

Not surprisingly I'd recommend this site's POC's

[GaryH]

As Micheal said the relevant information needs to be supplied on or attached to your claim form.

 

The danger is that when the judge comes to look at the case, he will see your claim without an account number or schedule and not much in the way of legal basis, aside from the mention of the UTCCR. Then he will look at Lloyds defence which asserts that the claim is not adequately particularised and too vague, and depending on the judge he may be minded to agree. Remember that what you sent to the bank previously will not be before the judge at that time, only whats on or attached to your claim form.

 

We have had a case recently where a case was struck out, although there were other contributing factors, which has raised the question of whether MCOL is suitable at all for these types of claims. I personally believe that if our template is used - which is more substantial than what you used - and a schedule of the charges is sent for attachment, the claim is adequately particularised. I beleive this satisfies the Cival Procedure Rules relating to statement of case (part 16), although I'm not a lawyer by any means.

 

If you want to make an amendment, use exactly what Micheal has provided for you.

 

If it were me though, I think I'd wait. The judge won't strike out your claim without warning and if he requests further information then you can provide it then. At very least though, you need to send a shedule of the amount claimed in charges and interest (if any) attached to your AQ, with your name, claim number and bank account number clearly marked at the top. Send a copy of the AQ and schedule to SC&M too.

[GaryH]

Oh, and here are the guide notes for completion of the AQ - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[slipwaypd]

Haven't got my forms filled in and taken to court as soon as I'd hoped but going to do it Thursday, had a thought though which may or not be important. When I made my original claim on MCOL there isn't an option to put in 2 claimants names, only 1 name or a business name, my account is a joint account. When I send my amended claim do I send it in my name or should I add my wife's name to the claim. Don't want to give SC&M another get out of jail card though they never mentioned this fact on their defence.

[rbrears]

If you want to amend your claim, particularly if the Defence says your claim is not properly pleaded, draft the amended claim and send it to the Defendant asking for their written consent to the filing of the amended claim - after all they have asked for it. When they consent (which they will) file it with a copy of their letter consenting and in these circumstances you do not need to pay a fee or file an application on form N244

 

If it helps take a look at this thread

 

http://www.consumeractiongroup.co.uk/forum/general/15172-reply-stock-defence-18-a.html#post116506

[GaryH]

Haven't got my forms filled in and taken to court as soon as I'd hoped but going to do it Thursday, had a thought though which may or not be important. When I made my original claim on MCOL there isn't an option to put in 2 claimants names, only 1 name or a business name, my account is a joint account. When I send my amended claim do I send it in my name or should I add my wife's name to the claim. Don't want to give SC&M another get out of jail card though they never mentioned this fact on their defence.

 

Just your name is fine.

[slipwaypd]

Sitting down now to do paperwork for my amended claim and can't fit all the POC info into the allowed space on Form N1, can you continue on a seperate sheet? Also is it satisfactory to cut and paste or should it be handwritten?

[Michael Browne]

can you continue on a seperate sheet?

Yes, put 'continued on attached sheet'

 

Also is it satisfactory to cut and paste ?

 

Yes. If your using the downloaded N1, remember you can't save it. Print it out before closing.

[slipwaypd]

Excellent, thanks for the speedy response.

[slipwaypd]

Oops another quick question, do I enter the Registered office of Lloyds TSB as the defendants or my branch address?

 

Also what do I enter where 'brief detail of claim' is required, I know what I'm claiming for but is there any particular wording to use?

[Michael Browne]

Registered office

 

Brief Details: The claimant has a bank account with the defendant. The defendant deducted from the account various amounts of money in penalty charges. The claimant contends that these charges were legally unenforceable and the claimant is demanding the repayment of money

[slipwaypd]

Thank you once again.

[slipwaypd]

Ok, got all my forms filled in, one question I'd like to ask and maybe should have before, why do I need to take 3 copies of my N1 and schedule of charges to court?

 

Who do they go to?

 

Also on my AQ what do I put in the 'Other information' section?