RedDeath v LloydsTSB

[RedDeath]

Well here it is my very own thread to keep a track of my claim against lloyds.

 

First underhand behaviour has already happened. Went into the branch in Perth and asked for a copy of statements. The lady was in the process of doing it right there and then for me when the manager intervened. He asked me what i was needing it for and i replied confidential, he then asked if it was for bank charges and i said yer. He then told me I had to write a letter for it. I suggested he gave me pen and paper and I would do i right there. So i did...

 

This was a couple of days ago. Since then i decided to ask for a S.A.R - (Subject Access Request) and went into the branch to ask for the Data Protection Officer. I knew the answer (or thought I did) just felt like winding them up a bit.

 

The lady at the cashier read my account and told me that I had to speak to a manager to get the address. I questioned it but was told it was protocol. 25 minutes the edit appeared. He asked me why i needed it and i simply replied "confidential". He then came back and told me that they would write to me and i had to reply to the letter. Stood my ground and told him that by law he had to disclose the address or I would complain to the information commisioner. The guy wasn't too happy and eventually gave me the address.

 

So the SAR was sent together with a PO for £10. Royal mail special delivery so that I can track when they get it. Hopefully just after christmas. From online statements i counted £4218 (jesus was i really that bad) but considering I had 2 old accounts with them as well the sum could hit £6k. Mexico here i come!

 

Since the first day though they have phoned me 3 times asking for £77 overdrawn. Thankfully get paid tomorrow but told them that i do not want to take inbound calls as i don't trust them. Still i am getting the calls. Coincidental or just because i raised the SAR? Anyway one option is a harassment letter but i'll wait a little longer before royally ****ing them off.

 

In the meantime it is my understandment that a scottish small claims court would only go up to £750. So now thinking of claiming in england, but even then the figure is 5k. I feel more than one claim coming on. Also as its an english court i can claim 6 years back. Hopefully this will settle out of court so i won't have to make my journey south.

 

So here it is, good luck to all of you in the claims process, stick to your guns and don't accept settlements. All or nothing!

[TANZARELLI]

Hi RedDeath,

 

Good luck with your claim, thats the spirit.

 

Tanz

[GaryH]

Good luck reddeath!

 

In the meantime it is my understandment that a scottish small claims court would only go up to £750. So now thinking of claiming in england, but even then the figure is 5k. I feel more than one claim coming on. Also as its an english court i can claim 6 years back. Hopefully this will settle out of court so i won't have to make my journey south.

 

You should'nt just split up a claim just so as to keep under the small claims threshold - it is considered abusive and the bank would more than likely apply to get them amalgamated anyway. 1 contract (account) = 1 claim.

 

Although the fast track contains a very, very small costs risk, its nothing to fear. In fact it does have distinct advantages - such as the availibility of standard disclosure.

[RedDeath]

Ahh thanks Gary, was still looking into that. So i take it I can now claim the full amount within a scottish court?

 

Also, depending on the total sum though i might as well try the english banking system as i believe Lloyds TSB are registered in England.

[GaryH]

I'm not 100% sure on Scottish proceedure or how it differs from that of the English system. There is a 'Scotland' forum within 'General' if you need some advice specific to Scottish proceedure.

[RedDeath]

Another event with this dumb bank.

Yesterday I got paid, but when i went to pay for petrol I got informed that my card had been declined. Luckily I always fill up in the same place so the guy allowed me to come back today, but when i went to the cash point to check my balance it would not autorise a balance check. So armed with attitude I went to my branch. I tried the cash point again but it swallowed up my card so I went to have a word with the main desk.

 

THe lady could not tell me why i could not take cash out, she went and checked and after 20 minutes informed me that the department that deals with it does not accept inbound phone calls and that she could only communicate via email. Fantastic!!

 

Luckily (i use the term vaguely and sarcastically) I was allowed to take out some cash. Enough for the week but I am not happy at having to carry £300 on me. Now can i claim for the disterss that all this has caused? Probably not knowing the (edit)****** that they are.

 

What I noticed on my statement though was that they charged me £10 for a copy of statements. Now I haven't told them they could, they certainly haven't sent me any statements yet, as my S.A.R - (Subject Access Request) included a £10 PO. Also, I have received a form for a SAR request from them, asking for £10 and informing me that they do not have the facilities to withdraw the money from my account so I would have to send them a cheque. CONFUSED.

 

Now my SAR request and their form are overlapping in the post. I take it that the template is sufficient information for the SAR. However, I am completely baffled as how they could take that £10 off me.

(edit) figure about 5.5 K in bank charges to date. I swear I am gonna fight for every last penny of it. Grrrrrrrrrrrr

[thumbs_up]

Sounds like it's time to sort out a paper trail, fella. Write them a brief letter asking why they've deducted the £10 from your account. Explain that you enclosed a PO with your SAR request and formally request the refund of the monies debited from your account.

Whilst your at it also ask them why they denied you access to funds in your account and why you've been denied access to your Debit card. Explain the hardship that causes (not that it'll cut any ice with them, but this all lends to future diclosure). Their response will be a matter of record and can be produced as evidence at a later date. I'm sure you can see where that's going!

Not that it'll be any sort of comfort (or surprise), they're applying exactly the same sort of heavy handed tactics with me. Fortunately I've not used the account for 18 months, so I don't rely upon it for withdrawals, but since issuing my summons they've issued an Enforcement Order on a £200 O/D (all charges), this despite me being in regular contact with their collections department, who are informed (at every single phone call!) that the only reason for this O/D is because loan payments have been made on my account every month, despite me settling it last April. Oh, that and a monthly payment cancelled (at the same time) wasn't cancelled (by them).

Nope, it's just petty, retaliatory tactics. Little do they realise that it's an exercise in futility to bully. You go for the jugular mate, I am!

[RedDeath]

Yeah thumbs, I agree, its a case of sorting out the paper trail. When I originally went to the bank for the statements I wasn't expecting to get them, i thought that as the letter was handed in at the branch it could have been "lost".

 

I am surprised though that they debited my account for £10 especially as their documentation says that they don't have the facilities for this. Anyway, my first request was for one account, i traced a 2nd account I had with them and to my surprise even a 3rd one. So the proper SAR I sent had details of all 3 accounts.

 

I suppose as long as I get all the statements it will be ok in the end, but you are right, a proper paper trail should be established from the beginning. I will write them a letter querying what has happened. It seems to me though that since I asked for the statements they have become very difficult to deal with. Good luck with your battle, and yes, time to go for the jugular!!!

[RedDeath]

Ok, I think the paper trail is sorting itself out. With regards to the £10 fee that was added to my statement I received my statements for one account for the last 6 years. Total so far £3833.50 (the interest on this will be sooo goood).

 

Also awaiting reply on the SAR. Royal mail site has confirmed that they have received the letter, now to wait for the remaining 2 accounts. I hope they hurry up, I really could do with this money by the end of February!

[TANZARELLI]

Sounds like a nice little wad!

 

Tanz

[RedDeath]

Ok just an update on the claim.

Phoned the DSAR team responisible for statements and they have confirmed receipt of my S.A.R - (Subject Access Request) on the 28th December. THey have since passed this on to their "paperwork" department, so it is in hand.

 

At this stage I have decided to charge compound interest and am going to be sending a letter to the bank asking what their authorised and unathourised overdraft rates have been over the last 6 years.

 

I am taking photoman's lead and argue mutuality with them. So I will charge interest at 24% ish. Will calculate what their charges were at the time of the claims and charge compound interest on the charges. The claim could end up close to the 10k mark. I must be crazy but I am going to take them for every single last penny.

[GaryH]

The interest rates going back at least 4 years should be published on the LTSB web site.

 

By all means go for contractual, but be sure you fully understand the issues first. Also, be prepared for a scrap - they don't pay it without a fight.

[upton11]

Dear Red

 

I know nothing about claiming contractual interest, but in case you have missed it. LUCID has just written quite a long piece about it on RCR's thread. If you check now then the thread you need is near the top.

 

Although I know very little about civil proceedings - which is why i am using this site for this cause of action. I am familiar with the legal system and the argument LUCID advanced seems bang on the money to me.

 

Hope it helps

 

Paula

[upton11]

That should have read RCR50 - my apologies

 

Paula

[RedDeath]

Hi Gary & Paula,

I have just read (well scanned) Lucid's thread. I will be reading it over and over again just to get things right. Charging compound interest at 29.86% would inflate my claim to around 12k. Well 4k so far with compound is 9.5k, plus 2 other accounts it makes it over 12k. Jesus!!! How i could use the money. This is a quick win site right??? Ok, kidding.

 

Lucid made a valid point though. A case would not be thrown out of court because its too high, but because interest may have been calculated wrongly. Yes, she makes a very strong case, so I better prepare myself for a fight.

 

I do however think that a fixed rate of 29.86% while valid, is a bit over-rated, and by claiming mutuality, then I should be asking for the same rates that they have applied to my account. So yes, Gary, the Lloyds TSB site should have the last 4 years of interest rates, but in the interest (he he no pun intended) of fairness then I should be going down the 6 year road.

 

I guess things are complicated a little further in my case as I live in Scotland so I should only go for 5 years, unless I claim at Lloyds's home court and go for 6.

 

This is gonna be a long battle, but I am just going to stand my ground. Mutuality, that is all I ask for. Now...might just scan around to see what i can spend my 12k on!!!!

[upton11]

Dear Red - check out Elsinore's commercial thread too. She has just posted a fairly detailed note which may/will be of interest to you too.

 

Regards

Paula

[RedDeath]

Hi Paula,

I will check Elsinore's thread, thanks for that. I have read in detail a few of the threads so far and the more I think about it the more I am going to push for the full whack. If it means court then so be it, after all I am asking for the same interest that they have applied to my account when I went into an unauthorised overdraft.

Been to the bank today to ask for interest rates and the manager has been really cool. I told him that I was planning on suing for charges and he was quite sympathetic. He said that he had to phone a "historic" interest department and that they would fax the details to him. He has also managed to pick up a copy of the T&C and phoned me up to say I should be able to pick them up tomorrow lunchtime. What a nice chap. Now to wait for my statements, in the meantime its time to put together a spreadsheet to calculate this compound complex interesty thingy.

[upton11]

I wish you the best of british with your spread sheets. I used the Vampresses and found they were brilliant and I am quite arrested in the maths department!!

 

Regards

 

paula

[RedDeath]

Thanks again Paula, I work with spreadsheets as part of my job so I guess once I have a template in place I can then pass it on to others. In the meantime I have just thought up a new question for myself.

 

The following thread http://www.consumeractiongroup.co.uk/forum/rbs-bos-successes/49470-contractual-interest-details-case.html has been very usefull, and i am slowly but surely reading and re-reading every paragraph. I still have about 3 weeks before Lloyds send me the remaining of my bank statements, but in the meanwhile it would be useful to compile a sheet in the same sort of format.

[RedDeath]

Hello again everyone, god I think I am spending a life time on this forum. Suppose the end justifies the means....

 

Ok, I am set on going for compounded contactual interest, the same rate as the banks, and the basis of my agreement will be mutuality. I have done some research and these are some notes I have put together. I would appreciate if someone could comment on the validity of these.

 

The idea of freedom of contract is central to enforcements of contracts and it runs through many of the individual rules of contract law:

• An agreement (offer and acceptance) is said not to exist unless there is consensus ad idem, the so called mutuality of the parties. So even so the parties think that they have agreed on something, there will be no enforceable contract between them unless this mutuality can be shown. The law prevents one party from forcing goods and services on another party without an actual agreement to take them. This is apparent in common law rules on acceptance as well as in statutes such as the Unsolicited Goods and Services Act 1971.

As the law of contract has developed, however, it has been recognised that the parties to a contract cannot be given unlimited freedom and the law has in many instances intervened to give greater protection to the parties. There are a number of reasons for this:

• It is recognised that very often the parties are of unequal bargaining strength and therefore one party would be able to dictate the terms of the contract, possibly at the expense of the weaker party.
  
• Particularly since the middle of the twentieth century, judges, Parliament and, more recently, the European Union have all concerned to give greater protection to consumers to avoid them being taken advantage of by unscrupulous businessmen in contracts that are driven more by the profit motive of businesses rather than the individual needs of consumers.
  
• It would be unfair to allow one party to take advantage of the other party’s mistake or to take advantage of a falsehood, or to coerce one party to enter the contract against his will.
  
• In certain instances either the courts or Parliament have recognised that it is unacceptable or inadvisable for parties to enter specific types of contract.

• In the case of exclusion causes the Unfair Terms in Consumer Contracts Regulations 1999, first introduced as the Unfair Terms in Consumer Contracts Regulations 1994, regulate consumer contracts to prevent unfair advantage being taken of the consumer. The effect of the regulations is that the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. The regulations implemented EU Directive 93/13, The Unfair Terms In Consumer Contracts Directive.

A contract is perfectly formed:

· A mutual agreement

· Supported by consideration by both parties

· With an intention to create legal relations.

 

The way that I am understanding this is that for a contract to be in place (agreement on T&C and the fact that a signature was required on the T&C (i.e why include a signature if there is no contract?)), then there has to be mutuality by consensus ad idem. Now if this was not the case then wouldn't the bank be in breach of contract and if so, what would the implications to the bank be?

 

As usual all advice is greatly appreciated.

[upton11]

I think I know what you are asking, but the simple answer, and because it is oversimplified it will lose accuracy -

 

The contract between us and the banks was breached by us originally when we went OD without permission, or failed to have cleared funds to cover a DD/SO etc. In response to those breaches the bank, quite properly, is allowed to charge us a sum of money to cover the losses they incurred by our breach. What has happended though is that the amount claimed by the bank can and is being viewed as a 'penalty' and penalty clauses are unenforceable.

 

In terms of implications to the bank, there are none really. Lawyers often draft clauses into contracts which we know will not be enforced by the courts, the aim of which is that most people will act in accordance with the contract and not risk taking the matter to court to have the validity of the clause determined

 

Clearly as this and other pressure groups gather more force etc the banks may well back down and re-evaluate their charging struture - but at present there is no incentive for them to do so, as the vast majority of their customers do not complain - while they can get away with it they will continue to do so - After all as you said in the top of your post we all have the freedom to contract and if we are prepared to accept unfair terms, the banks will continue to charge - We do after all live in a free market economy.

 

Regards

 

Paula

[RedDeath]

Hi Paula,

Yes I understand that we were the first to go overdrawn, however you could argue that the bank allowed me to go overdrawn by imposing penalties on me for their own profit.

 

What I would like to do is charge for compound complex interest, the full whack!!! My principle is mutuality. If I take money from them without their authority they charge me an obscene interst, so, by mutuality, if they take money from me without my consent (and bank charges are illegal) then I should also be able to charge the same interest rate that they would charge me. After all the banks are in a priviledges position as they can take the money at their discretion.

 

However, I am struggling in finding any information on mutuality, and any examples that I could use. Does mutuality exist in our agreements with the bank?

 

I guess its the same question many of us have.

 

Thanks again for the advice.

[RedDeath]

A rant and a rave.

 

So far no bank has gone to court to defend their case? Am I correct in assuming this?

 

So what would the chances of them going to court to defend a compound complex interest? They would risk having to divulge their profits from it in public which greater repercussions to my 14k claim.

 

Why am i so nervous about this???

 

On a different note I now have all of their historic interest rates over 20 pages of it. Will tidy it up and post in the near future.

[upton11]

Dear Red

I am going to try and PM you re your mutuality point.

 

Regarding the nerves, it is good to be nervous. Litigation is daunting and to go in guns blazing with a 'gung ho' attitude would, I think, lead to the making of silly mistakes which may undermine your credibilty and that would be daft as you are clearly switched on.

 

Regards

 

Paula

[RedDeath]

Thanks for the pm paula and for the "you are clearly switched on". Gonna print it off as proof as a few people may question that.