RedDeath v LloydsTSB

[upton11]

You do that, anyone who understands spreadsheets and applied maths is switched on in my book

 

I am thrilled the PM worked - get me a real techy now!

 

Regards

 

Paula

[elsinore]

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

 

Amen to that, Paula!

 

Elsinore

[RedDeath]

Guns are loaded and I am ready to go!!!!!

 

I feel I am right in going for the 29.8% from day 1. My unauthorised borrowing is charged at 29.8% so the same should apply to LTSB. The thought of £750 in court fees....ahhhhh.

 

However, I feel I have a valid case. I am doing my research and I have loads of good people firing in with different points of view which i really appreciate.

 

Just a thought, my 5% donation (cause I am going to win), is it a flat fee or compounded, complex???? Don't want any litigation cases arising from this!

[elsinore]

Excellent work on the Historical (hysterical!) Interest Rates, Red.

 

Some definitive information that will be of great value to all LTSB claimants.

 

Elsinore

[RedDeath]

Wow, how does time fly. I've been taking a bit of time off while my S.A.R - (Subject Access Request) was being processed. So here is the update.

 

SAR

This was received by lloyds on the 27 December so the 40 days were up on Monday 3rd of Feb. By the friday i still had not received anything (Capital One sent at the same time was received much earlier) so I phoned them up. Now i have worked in a call centre and know all the fob off lines and i was met by all of them. Its an easy question, when did you send my statements? but it took around 5 minutes before she took my details to check, the rest were dumb lines. Eventually the lady told me it was not their department and to phone up a different department (Birmingham), and so I did.

The lady on the phone once again tried everything to fob me off. "Thats right that letter was sent before christmas, must have been delayed in the christmas post" Answer: no it hasn't, it was sent signed for. Lady: "Oh thats right, we didn't receive payment". Answer; "I am surprised you didn't tell me earlier, but thankfully I have photocopies of the payments, and i do have proof that you received it". Lady:"Oh that's right, it will take another couple of weeks". Answer: Well I have proof that you received the letter on the 27th, so your 40 days are up on Monday, if i don't receive the documents by Monday I will be raising a complaint with the information commisioner. Lady: "Ok, hold on". By this point i was feeling quite chuffed with myself, and all i could hear was the lady going through some paperwork. She then came back to me to tell me that they would rush it through for me. And so they did, paperwork landed on my doorstep the next morning. RedDeath 1 - 0 LTSB.

 

Charges

 

I was surprised that over 5 years my bank charges amounted to £5500. That works out at £100 a month. (edit) Made me think how life would have been different with that money, but then again its a very welcome amount.

 

One month I was overdrawn by £1.29, yes in words so that is not seen as a typo, one pound and twenty-nine pence because of a £15 mobile phone bill. That meant £25 in charges (twice, because the direct debit was returned again 3 days later, i am sure i never got a letter). So the next month it was £60 plus 2 mobile phone bills (new one and original one) which meant an instant £90, and at the time that was a hard hit. Other dd'd bounced as a result until it totalled £450 a few months later. Jesus, all this for £1. Result, defaulted to brighton office.

 

So with it i decided to charge them compounded complex interest or whatever the technical term is for it. 29.8% annual, calculated daily. It means that the total in interest alone is £6000.

 

First Letter

 

So i sent my letter a couple of days ago, first 14 days are up on the 21st of Feb, here goes.

[RedDeath]

Ok, for completeness, thought i would post the letter. I am claiming for 3 accounts at the same time.

 

Customer Service Centre

Dept. 44-31

6th Floor 2 Atlantic Quay

45 Robertson Street

Glasgow

G2 8AB

 

5th February 2007

 

 

Request for repayment of charges

 

Dear Sir/Madam,

 

SORT CODE: XX-XX-XX

ACCOUNT NUMBER: XXXXXXXX

SORT CODE: XX-XX-XX

ACCOUNT NUMBER: XXXXXXXX

SORT CODE: XX-XX-XX

ACCOUNT NUMBER: XXXXXXXX

TEMPLATE LETTER REMOVED

 

 

 

Red Death @ 6:14

[GuidoT]

Hi RD, you are claiming a lot of interest - your claim is moving along nicely.

 

This is an interesting thread regarding the claiming of contractual interest, the judge seems to be suggesting that contractual interest claims should be framed differently to have a greater prospect of success:

http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/52143-directions-hearing-leeds-16.html

 

The thread is still transient, it may end up giving you some ideas for a further alternative regarding claiming contractual interest that you could put in your POC, stemming primarily from post 310.

[RedDeath]

Thanks Guido. I took a quick scan at it at it seems like a promising thread. Would be interesting to see if the thread mentioned anything about mutuality. Lucid's case has been successfull at 29.8% but it wasn't for such a high amount. I am aware that I am charging an awful lot of money, but its just a reflection of the debt I found myself in years ago. Those charges were an absolute killer from which they profited greatly, hence the mutuality. Preaching to the converted!

 

I will give that thread the usual thorough read. I still have around 3 weeks before I can start court proceedings.

 

LTSB have sent me the standard bogoff letter, should i wait for the original 14 days to expire and then start with the letter before action, or reply sooner?

[GuidoT]

Personally, being a bit cautions, I would wait for the 14 days to expire.

 

Therefore you are giving them the full 28 days to settle prior to commencing legal proceedings.

 

As an aside, I had NatWest and RBS claims for £10K settle in circa 2 weeks from the prelim letter - I was amazed. I now therefore like to give them the full 28 days.

[RCR50]

RedDeath hi

 

I have just picked up on your thread...`WOW` fabulous!

Good luck! I will be following your thread and rooting for you.

 

Being £1 overdrawn because of that phone bill and it growing into such a ridiculously large amount must be enough for you to be absolutely determined to wipe the floor with them and get justice...

[RedDeath]

1. In giving his preliminary, non-binding views, the judge said that:

(a) if overdraft interest was charged by the bank on the penalty charges, and deducted from the account, the consumer may have a claim.

(b) However, if the consumer tried to recover these or other sums by way of a claim for contractual interest, it is unlikely contractual interest would be awarded at such a high rate (28%+). "More than likely" the judge would award a sum of 8%.

2. The two unsettled cases had paid overdraft interest on their penalties, so should have met the criteria in 1(a) above. BUT because their particulars of claim sought to recover these sums as contractual interest, they would have had less chance of success. So, the judge offered as a suggestion that they could amend their claims to bring them back within 1(a). He was careful not to be prescriptive, but outlined wording for an amended claim:

"The repayment of interest deducted in respect of unauthorised borrowing, and an order that the amount so deducted be calculated by the court on enquiry".

 

Guido, I checked that thread out and came across this quote by matreb.

According to section 1a, as I have been charged the 29.8% charge when i was overdrawn as a result of the charges, then I take it that I could go on to claim this back.

 

According to 2b,

 

To justify a higher amount the judge would need more information on how the account was managed (perhaps the implication was that if the customer has been deprived of money unfairly, possibly with a result that the customer could not pay off other borrowing elsewhere at an equally high rate, there might be a justification??)

 

Well as a result of the 1.29 charges i then ended up paying around £400 in spiralling charges. The extra charges one month were not met and as a result other direct debits bounced. I could get a copy of my experian credit file and try and cross-reference the charges against my credit report. Show that I ended up defaulting on some payments and as a result that would have impacted my credit rating which would have led to a higher cost of borrowing.

 

I take it that at this stage i need to be prepared to go and fight this in a court. It is a huge amount so I take it that I won't be able to do this in a small claims court.

 

Ok, I will wair for the 14 days to expire before proceeding with a letter before action. Time to prepare the rest of my case.

 

 

Finally, a couple of my posts were edited, and while i do not object to them being edited, i do wish to ask a couple of questions on it.

My first comment implied that I felt robbed, and if i was robbed they would have been the *****. Ok, this may seem liable so i accept that, and am thankful, as it was a comment made in the heat of the moment.

 

Now removing my "template" letter on the other hand i don't understand. I would like for other people reading this thread to know what my steps were in claiming 29.8% so that they also can claim this back. Given, the template occupies space and maybe try and cut down on that. However, i did ammend the template, highlighted the sections in red so that people could know that, yet it was deleted. Care to comment?

[TANZARELLI]

Guido, I checked that thread out and came across this quote by matreb.

According to section 1a, as I have been charged the 29.8% charge when i was overdrawn as a result of the charges, then I take it that I could go on to claim this back.

 

According to 2b,

 

 

 

Well as a result of the 1.29 charges i then ended up paying around £400 in spiralling charges. The extra charges one month were not met and as a result other direct debits bounced. I could get a copy of my experian credit file and try and cross-reference the charges against my credit report. Show that I ended up defaulting on some payments and as a result that would have impacted my credit rating which would have led to a higher cost of borrowing.

 

I take it that at this stage i need to be prepared to go and fight this in a court. It is a huge amount so I take it that I won't be able to do this in a small claims court.

 

Ok, I will wair for the 14 days to expire before proceeding with a letter before action. Time to prepare the rest of my case.

 

 

Finally, a couple of my posts were edited, and while i do not object to them being edited, i do wish to ask a couple of questions on it.

My first comment implied that I felt robbed, and if i was robbed they would have been the *****. Ok, this may seem liable so i accept that, and am thankful, as it was a comment made in the heat of the moment.

 

Now removing my "template" letter on the other hand i don't understand. I would like for other people reading this thread to know what my steps were in claiming 29.8% so that they also can claim this back. Given, the template occupies space and maybe try and cut down on that. However, i did ammend the template, highlighted the sections in red so that people could know that, yet it was deleted. Care to comment?

 

I haven't got time to answer all your points as got to go to work, but with regards to the template letter, if you have cut and pasted it out of the library it will be deleted as far as I can gather, because to view these people need to register to the site or they appear blank.

[RedDeath]

I haven't got time to answer all your points as got to go to work, but with regards to the template letter, if you have cut and pasted it out of the library it will be deleted as far as I can gather, because to view these people need to register to the site or they appear blank.

 

Thanks Tanzarelli, that does make perfect sense to me. Would have appreciated that the "ad-hoc" work might have been kept. I have seen quite a few threads with full templates in them so far, but no harm done.

Yes, I am at work as well. LTSB case warming up nicely, gonna have to find the time to do all of my paperwork. Hell, i will just charge them for that as well. Think its about £9 an hour, might skank 10 hours work

[RedDeath]

I have been mulling things over in my head over the past couple of days. I am going for the 29.8% interest. So couple of thoughts...

 

I take it that if i can prove that the bank took 29.8% interest from me then I can charge them the same? Bit of a dumb arguement though cause it says so in their bank charges. Unauthorised rates are 29.8%, and how else can you go into a repeating unauthorised situation? By the bank charges.

 

Also, I would like to point out how £1.29 od eventually spiralled into over £400 in charges, and the way this affected my credit rating. I would like to use this arguement as an example as to why it is fair for me to charge the bank back at the 29.8% interest.

 

Now at what stage do I do this? Currently I am about to send LBA out but i am not expecting anything back from them, so court is the next step. At what stage would i put my example in. Also, i can crossreference to equifax reports.

 

Big amount so what court will this be at? I take it i am out of the small claims court?

 

Another thought. Would I need a copy of my original contract (terms and conditions) or not? This so I can prove that a contract was in place. Yes, it is defined as terms and conditions but it still needs a signature. This so I can argue mutuality.

 

Also, would i need a copy of any time that i was refused an overdraft or a loan, this so i can prove that LTSB were benefiting from the charges, as extensions to o/d were always refused.

 

I feel it may be time for another SAR to get that information. 40 day deadline should still be able to carry on as planned and that should reach me before I need to raise court details. Unless they obviously play funny buggers again!

 

Any thoughts greatly appreciated.

[RedDeath]

Still have not heard from LTSB and their 14 days for the LBA are about to be up. What should I do at this point? I was thinking about sending a letter saying that I am disappointed that they have not entered into any communication with me and that I would like to give them an additional 14 days to settle in full or I will be commencing court proceedings.

 

This would buy me some time for the following reasons.

1. Skint..so as Cr@p One are about to settle (court 20 April) that money would fund this claim.

2. Still need to fill out poc an I will post here once completed if anyone could give it the twice over.

3. Lastly, I live in Scotland and my claim is 12k so i think I am heading towards a merchantile court. What should I do??? Claim in England and incur costs for travelling to court, or can I do this in a Scottish court.

 

HELP!!

[RedDeath]

I have decided to give LTSB a further 14 days to settle. This is a copy of the letter that is going out Monday morning. Any comments?

 

LETTER BEFORE ACTION - FINAL NOTICE –

 

Dear Debbie Gilbert,

 

SORT CODE: xx-xx-xx

ACCOUNT NUMBER: xxxxxxxx

SORT CODE: xx-xx-xx

ACCOUNT NUMBER: xxxxxxxx

SORT CODE: xx-xx-xx

ACCOUNT NUMBER: xxxxxxxx

 

I am very disappointed that you have failed to respond to my letter before action dated 24th February which you received on the 27th of February as has been confirmed by the royal mail (Reference: xxxxxxxxxxxx). As a long standing customer of your bank (approx 10 years) I would have at least expected an acknowledgement of my complaint.

 

I am concerned that you may be underestimating the seriousness of my complaint. In view of this I am willing to give you a further 14 days to enter into sincere dialogue with myself regarding the unlawful appropriation of money from my bank account through penalty charges disguised as bank charges.

 

I now understand that the regime of 'fees' which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £6216 plus £5222 which you have charged me in overdraft interest for the sum which you have taken. The interest rate that I have used in these calculations is 29.8%. You will note this is the equivalent interest rate that you apply to my account in the event of an unauthorised overdraft.

 

While I appreciated that as a business you have a right to recoup losses, you should only be able to recoup genuine losses and not profit from this process as in that case you would be introducing penalty charges which are unlawful at Common Law, Statute and recent Consumer regulations.

 

 

To satisfy my complaint, please provide me with a full breakdown of your costs involved in recouping losses in relation to direct debit refusals, exceeding overdraft limits and so forth to justify that the regime of bank charges that you have been levying to my account are a true reflection of the costs you have incurred.

 

If this is not possible then I can only but confirm what the media and OFT have been reporting that you are indeed profiteering from such charges.

 

As such I ask that if you are not able to fully justify your costs to me that not only are my bank charges fully refunded but that you refund me interest at the above rate based on the mutuality of our agreement, as you would have been abusing your position as my fiduciary and unlawfully appropriating yourself of my money regardless of the trust that I had that you would be operating my account fairly, lawfully and if full compliance of UK law. The total of which amounts £11438.

 

Additionally throughout the running of my account you have entered default notices against my credit record. These defaults occurred merely in respect of unlawful charges levied by you, or were the result of impecuniosities caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

Should I not hear back from you within 14 days of receiving this letter (once again this will be referenced via the royal mail’s signed for services) then I shall have to assume that you are not taking my request seriously and I will deem your refusal to enter into sincere dialogue as your final offer with regards to this matter and will seek closure through the judiciary system to reclaim my charges and interest.

 

For your records, I am enclosing a copy of my Letter Before Action dated 24th February 2007 together with a further schedule of the charges which I am claiming. I have already sent you a copy of these charges in my original letter of the 5th of February 2007.

 

I require repayment in full of this money and removal of the default notices. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

PLEASE DO NOT UNDERESTIMATE THE SERIOUSNESS OF THIS LETTER – IF YOU ARE UNSURE I SUGGEST YOU SEEK THE IMMEDIATE HELP FROM YOUR LEGAL DEPARTMENT.

 

Yours faithfully,

 

RedDeath@6:14

[GaryH]

Its a very good letter - however, I can pretty much guarantee that they won't read it properly, and even if they do they will not respond. I suppose it will demonstrate to the court that you have given them every opportunity to settle and have tried your best to avoid litigation - which is good - but unfortunately that is the only beneficial effect it will have.

 

Also, I would not personally advise that you take a contractual interest claim into the fast track with costs exposure. Its undeniably risky. However, I trust you are fully aware of the risks and have already carefully considered them.

[RCR50]

Hi Reddeath

 

Obviously I cannot comment - leave that to the people who know what they are talking about like Gary, etc. It does make sense on a practical level however to stall by giving them another 14 days......I hope you come through with Capital One quickly now to fund this for you.

 

Good luck and best wishes.

[TANZARELLI]

I agree with Gary that they prob wont read it to closely however as mentioned you have at least shown yourself to be making every attempt to resolve the matter and show you are following the pre action protocols.

 

Hope it has the desired result, but I still think you will be filing at court.

 

Good luck.

 

Tanz

[RedDeath]

Thanks guys,

Yes the only benefit from this will be scoring brownie points in front of a judge and at least seem like i would rather exhaust all possible paths before litigation.

 

Also, I would not personally advise that you take a contractual interest claim into the fast track with costs exposure. Its undeniably risky. However, I trust you are fully aware of the risks and have already carefully considered them.

 

Gary/Tanz, could you please highlight the main issues or point me in the direction of a couple of threads? And what are the options, if any?

Yes I could avoid contractual but they have applied that rate to the running of my account, to me it is only fair that i charge the same back.

 

Also what are the differences between a fast track court as opposed to a small claims court? I take it that I would be liable for costs if I were to lose. Suppose my particulars of claim will lay out the basis of this claim, so loads more work to do.

 

I take it a simple template won't cut it and it will come down to the thoroughness of my particulars of claim and ask for authorised rate or failing that statuatory 8% as a fail safe.

 

As usual, thanks again! Really appreciated.

[GuidoT]

Try this for starters:

http://www.consumeractiongroup.co.uk/forum/general/18313-why-no-one-claiming.html?highlight=contractual+interest

 

Main difference between small and fast track. In the fast track you have exposure to the other sides legal costs if you loose, in small claims little or no costs exposure.

 

In fast track you have disclosure, but not in small claims.

 

The template on this site is fine with a few extra paragraphs relating to contratual interest. Incidentally, you should include CI in your prelim and LBA if you are claiming it (but not SI).

[RedDeath]

Thanks Guido, that I will look into that thread in detail. Have to admit that I had scanned that one before, maybe its time for some revision.

 

Forgive me if this sounds repetititve as i need to get it right in my head before proceeding.

 

Main difference between small and fast track. In the fast track you have exposure to the other sides legal costs if you loose, in small claims little or no costs exposure.

 

So if I were to lose I would have to pay their legal costs.

 

In fast track you have disclosure, but not in small claims.

 

Not sure what you mean by disclosure.

 

The template on this site is fine with a few extra paragraphs relating to contratual interest. Incidentally, you should include CI in your prelim and LBA if you are claiming it (but not SI).

 

I read that wrong and for 5 minutes I did panic. Yes I have included CI in both prelim and LBA. Woah, scary 5 minutes!

[GuidoT]

Yes if you loose you end up with their legal costs (rule of thumb around 60% of them) see the link below:

http://www.consumeractiongroup.co.uk/forum/yorkshire-bank-clydesdale-bank/69403-victory-yorkshire-bank.html

 

Disclosure is where both parties are required to reveal copies of the relevant documentation, including that which is detrimental to their case, it is a good thing as the banks are required to produce their charge structure.

[RedDeath]

Disclosure is where both parties are required to reveal copies of the relevant documentation, including that which is detrimental to their case, it is a good thing as the banks are required to produce their charge structure.

 

I thought that was what you meant, really need to get things 100% in my head at this stage.

 

This seems incredibly positive to me. I want them to disclose their charge structure. Who deals with it, do they deal exclusively with it, do they use certain computers, are these computers only used for charges, is it automeated, how many charges a month/year and so on...

 

I very much doubt that even at this stage they would be willing to disclose their true costs, all they will be able to do is argue on the interest rate that I am applying to my case.

 

Saying that I can prove instances during the running of my account to highlight when they charged me 29.8% interest for unauthorised borrowing. I am still of the school of thought that the charges were unlawful and as such the bank abused their position of trust. Just like i have abused my position of trust with a cheque guarantee card and have signed cheques that I knew would not be covered, they charged me 29.8% interest for the pleasure. Hence, they abused the same trust, had the same methods to take money from my account and it is only fair that they also pay back interest at the same rate.

 

I am going to base my arguement, as many, on a simple fact. Justify the true costs of the charges and if that is not possible they must be deemed as unlawful and the action of removing money from my account represents unauthorised borrowing from their part and as such should refund me the same amount back.

 

I think ultimately though that the better i lay out my particulars of claim the better chance I will have to argue my case. Some have advised not to go for this rate of interest but I have decided to go for it anyway. Am I confident about it? Not 100% but still feel that i need to stand up to them and argue my case. If it all goes pete tong then fair enough i tried.

 

In the meantime this means a lot of time typing up my poc. I am at work at the moment so can not post the main threads that have inspired me so far but I will post these soon. In the meantime i think I have scored extra brownie points by giving them a further 14 days to respond.

 

Guido, thanks again for the responses. I have food for thought now. Cheers!

[RedDeath]

An update on the claim...

Residing in Scotland isn't just bad because of the weather, but also because of the legal system. My T&C with LTSB stipulate that as the account was opened in a Scottish branch I need to go with Scots Law.

I can not seem to find any comprehensive info on Scots law. I currently have a court date with Capital one for the 20th April, but this is for only £1200 so a summary action was enough. Unfortunatly the maximum I can claim for is £1500, which is well below a 12K claim.

It is my understanding at this stage, and would be grateful if someone could confirm this either way, that after £1500 I can not take them to court without the use of a solicitor, or something down those lines.

It leaves me with taking them to court in England, which will involve a "wee" bit of travelling.

 

This is my arguement so far for it to be heard in an English court. Could anyone please advice on the exact details as to why I can not sue them in Scotland? I hope I am wrong, however, this is the case for it...

 

PART I - INTRODUCTION AND GENERAL DETAILS AND BASIS OF CLAIM

 

Jurisdiction

 

1. This section is pled without prejudice to all matters not related to jurisdiction in this court.

2. The Claimant is a customer of the Defendant. The Defendant’s standard terms and conditions for personal customers (hereinafter referred to as the “Terms & Conditions”) stipulates jurisdiction of disputes in these circumstances, where the Claimant opened the account in Scotland, to a Scottish Court. The claimant disputes this based on the following criteria:

(a) The Judgments Act 1982, as amended by the Civil Jurisdiction and Judgments Order 2001, Schedule 4 of the 1982 Act (as amended) regulates the court's jurisdiction over consumer contracts.

(b) Paragraph 8 Schedule 4 states that -

§ “A consumer may bring proceedings against the other party to a contract either in the courts of the part of the United Kingdom in which that party is domiciled or in the courts of the part of the United Kingdom in which the consumer is domiciled.”

© The defendant may argue that this precluded by paragraph 9 of such act which states:

§ The provisions of rules 7 and 8 may be departed from only by an agreement, and that the terms of conditions of the contract formed such agreement.

(d) However this clause is argued as an unfair term of contract in terms of The Unfair Terms in Consumer Contracts Regulations 1999 Paragraph 1(q) of Schedule 2 to the 1999 Regulations provides as follows:

§ 1(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

(e) Due to the overall sum of the claim (£12000) The Scottish judiciary system would only allow the claimant to….. As such, jurisdiction is sought in the xxxxxxx Court

3. Separtim: the Defendant:

a. is a company; which

b. was incorporated or formed under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom;

c. has its central management and control exercised in the United Kingdom;

d. has its central management at 25 Greshan Street, Lonon, England

e. accordingly the Defendant is domiciled within Scotland as defined by the terms of s42 Civil jurisdiction and Judgments Act 1982 (as amended) (hereinafter referred to as the “CJJA”). As such this court has jurisdiction by virtue of Rule 1 of Schedule 4 to the CJJA,