Smellipants v Abbey

[Smellipants]

Hi Folks,

 

Thought it was time I posted here - have been meaning to do this for 6 months or so but only just got around to getting the parachute accounts up.

 

Still in the early stages, but details so far are:

 

1) 15th Jan 2007 - Initial Letter sent

2) 24th Jan 2007 - Standard Letter received from Abbey (Andrew Nanson, Business Manager) saying they will write to me within the next 4 weeks.

3) LBA Sent 30th Jan claiming £1901.47 - they have until 14th feb.

4) £245 of 'Miscellaneous Fee Repayments' turn up in my account 1st Feb. (Assuming GOGW, but waiting for letter).

5) GOGW letter received saying they would pay £230 back. (Not sure why they overpaid but hey-ho!).

6) Response sent stating I accept the money as partial payment and will proceed with the court claim.

7) N1 form sent to court claiming £988.50 + 16.90 Contractual Interest (-£245 GOGW).

8) Court papers served on Abbey on 28th Feb - they have until 14th march to respond.

9) Abbey decided to defend - defense papers received this morning. 24th March.

10) AQ Submitted

11) Notice of Pre Trial review received - date 13th July.

 

To be continued.....

 

PS. Must just say a big thanks to this website for giving 'Joe Public' the confidence to get their money back, and a congratulations to everyone who has successfully challenged the banks so far!

[Smellipants]

Hmmz - think I may have made an error

The prelim letter I sent, I think had the 8% interest rather than the overdraft interest.

 

In the letter it said

"What I require

I calculate that you have taken £988.50 plus £182.14 which you have charged me in overdraft interest for the sum which you have taken. Total £1170.64.

 

I enclose a schedule of the charges which I am claiming with this letter"

 

Looking back at the spreadsheet I used, I think this is actually the 8%

I'm a bit confused now - should the interest mentioned in the prelim letter just be compound interest? Should I redo my charges using a different spreadsheet (Like the one from Mindzai), and resubmit a new prelim, or can I change the amount I'm claiming in the LBA?

 

Sorry for being a doofus - I must've read through the stickies, notes, templates on this site over and over before submitting - I think my head was going around in circles when I submitted my prelim :o

[Mad Nick]

Smellipants, don't worry, just modify the schedule of charges when you send the LBA. So what about the actual figures ?

 

First, you said "I think" quite a few times, so probably worth double checking whether your current figures are using 8%. Get a calculator, pick any one of your charges and work out : charge x no. days * 0.08/365 If the calculator and the spreadsheet show the same interest figure, you've obviously used 8%.

 

Second, decide what form of contractual interest (which is calculated compound) you want to claim : either the exact interest they charged which means taking into account your changing balance or applying their overdraft rate (either authorised or unauthorised) to each charge. As you say, there are different spreadsheets which do either. Regards, Mad Nick

[Smellipants]

Hi Nick,

 

Many thanks for the info. It definitely was calcuated using an 8% spreadsheet.

I've decided I'll try to claim for interest at their unathorised overdraft rate, and the spreadsheet from Mindzai seems to take care of that nicely.

Just one other question before I send the LBA: Do I need to state that I've changed the amount I'm claiming from the prelim, or do I just enter the new amount in the LBA and let them work it out?

 

Thanks again.

[Mad Nick]

Smellipants, I changed to contractual from Prelim to LBA and I said : "...... my original calculation (attached to my letter dated ******) failed to compound daily the interest which is how I now understand that you levied interest on my charges (which were unlawful)." Hope this helps. Regards, Mad Nick

[Smellipants]

Great - thanks so much for the advice I'll be sure to keep the thread updated with my progress

[Smellipants]

LBA Sent 30th Jan 2007 claiming total of £1,901.47. They have until Weds 14th Feb

[Smellipants]

Yesterday I received £245 of 'Miscellaneous Fee Refunds' in my account.

No letter arrived in the post yet, so assuming GOGW.

 

Will wait another couple of days, if nothing shows I'll give them a call asking them to explain what the money is.

 

From reading other posts, I believe the correct thing to do is (if I receive the GOGW letter) to reply stating I accept the money as partial payment and proceed with the court stage - can someone confirm? Thanks!

[Mad Nick]

Smellipants.

From reading other posts, I believe the correct thing to do is (if I receive the GOGW letter) to reply stating I accept the money as partial payment and proceed with the court stage - can someone confirm? Thanks!

Correct.

[Smellipants]

OK, well I received the GOGW letter today, and initially I was going to respond using a letter like this one (that I nabbed from another post ):

 

Dear [named sender or Sirs]

 

Thank you for your letter dated xx/xx/xx and settlement offer of £XXX. I understand you have already credited my accouint with this amount.

 

I respectfully decline your offer of settlement and request, once again, that you return to me all charges imposed on this account,

 

I will accept the sum offered only as part settlement and on the clear understanding that I will pursue recovery of the remainder. As notified in my letter before action dated xx/xx/xx, I will be issuing a claim in the County Court on xx/xx/xx

 

I will be willing to withdraw my claim upon receipt of unconditional full settlement of my claim.

 

I trust this clarifies my position.

 

Yours faithfully

 

That is, until I read a post from JonCris saying that "A 'goodwill' payment is not an offer of settlement, unless stated. In which case it is not a 'goodwill' payment it is an offer of part or whole 'settlement'

 

A 'goodwill' payment is a payment intended to restore 'goodwill'

 

If the banks, in their attempts at being smart, want to call them 'goodwill' without qualification then they cannot later claim them to be in part or whole settlement of the claim

 

Write & thank them for their 'goodwill' payment which is much appreciated whilst asking when can you expect full & final settlement of your claim"

 

Taking that into account, would anyone be able to help me draft a letter accepting their GOGW and saying that I will be pursuing my claim as intended? (I'm not very good at drafting these sorts of letters and don't want to give them any loopholes they can use against me ;-) )

[Smellipants]

Many thanks for the draft Karne

This'll be sent tomorrow and then I'll proceed with a court claim on 14th Feb.

[Smellipants]

I'm just preparing to get my N1 form ready for this Wednesday, and I have a question about the Daily Rate.

 

My claim (when the LBA was sent) is for:

£988.50 Charges

£912.97 Contractual Interest @ 28.70%

£1901.47 Total.

 

I used the Mindzai spreadsheet to work out the interest,but I think I'm getting a bit confused about the daily rate.

If I open the spreadsheet as of today, it calculates that I'm owed £1919.47.

- If I change the date on my PC to tomorrow, and then reopen the spreadsheet it calculates that I'm owed £1921.69

A difference of £2.22 for 1 day.

 

- On the spreadsheet itself, it says the daily rate is £0.69

 

- But also, if I use this formula '£1919.47 x 28.7 / 100 = £550.88. divide this by 365 which gives you £1.51', it comes out as something different again.

 

I'm confused :S Is there anyone that can advise on which of the above 3 rates I should be using? I'd like to make sure it was as accurate as possible, and I know I'm probably being really stupid >.

 

Many Thanks in advance for your help!

[Mad Nick]

Smelli, it's damn confusing, isn't it. If you're up for it, I'll explain what's going on.

 

First, at an annual rate of 28.7%, the daily rate of compound interest is 0.00069151 = 0.069151% (I can bore you with the formula if you want). You say the spreadsheet says £0.69 - it's either a coincidence or wrong.

 

Second, the £/day is not fixed. With compound interest, there is no fixed £/day interest because each day there is interest on previous interest. In the jargon, the interest increases exponentially not linearly ie for one charge :

amount of interest = charge x (1+0.00069151)^days since the charge - charge

I bet the spreadsheet is right : your total interest increased by £2.22 due to the extra day.

 

In summary, for contractual (compound) interest, forget any notion of a daily rate in £/day - it's an exponential formula. Hope I've not confused you.

 

Regards, Mad Nick

[Smellipants]

lol - ever wished you never asked something?

 

OK, so If I should forget about a £/day daily rate, do I put on my N1 that interest will accumulate at a %/day daily rate until settled? And then use the daily rate of 0.069151% that you mentioned in a previous post?

[Smellipants]

Is there anyone that could advise on the above question please? (Sorry to be a pain - be nice if I could get my N1 out tomorrow or the next day! )

 

Thanks.

[Mad Nick]

Smellipants, if I were you I'd just put "interest increasing at 28.7% pa, the Defendant's unauthorised overdraft rate, from the date of each charge until the date of Judgement or earlier settlement by the Defendant."

 

But are you sure you can justify that rate ? I'm not saying don't do it - on the contrary, it's up to you - but you need to think very worst case possibilities eg the remote possibility of having to argue the basis for it in Court. Have you read GlennUK's thread and the one in General "..... the Judge doesn't think so" ? I'm not trying to put the wind up you - but this is potentially serious stuff - I couldn't just leave it as "use 28.7%" without making sure you're going in with your eyes open. Regards, Mad Nick

[Smellipants]

Hi Nick - thanks for the advice - much appreciated as always!.

I'm caught between claiming the unauthorised rate and the 8%. I think I'd be happy with 8% but obviously the temptation is always there to go big.

I'd been following Glenn's case and it obviously raised concerns that it's nowhere near a cut and dry situation. The thing is, because I've asked for the 28.7% in my LBA, should I stick to my guns and follow it through (maybe I'll get a nice judge ), or do you think I should back off and go for statutory? Is it possible to change your stance midway through and just claim the statutory in the claim form, after an LBA asking for Contractual?

[Mad Nick]

Smelli, there might be a middle way depending on your particular circumstances. If you had/have an overdraft and were mostly in the red, then you'd have a strong case, in my opinion, to claim back the interest they took (at the authorised overdraft rate) rather than levying a particular rate on them.

 

The (my) logic would go that :

• they levied and you paid the charges through a "mistake of law" (the basic argument that they turn out to be unenforceable in law);
  
• they levied and you paid interest on those charges which must, therefore, derive from the same basic "mistake of law";
  
• the law of restitution allows reversal of the above; ie the Defendant's "unjust enrichment through a mistake of law" of the charges + interest;
  
• the killer case supporting this seems to be Deutsche Morgan v Inland Revenue

I certainly wouldn't include all that in my N1 - I would just say that you are claiming interest at the authorised overdraft rate, and then see what happens.

 

So, there you go, 3 choices 28.7%, 16.9%, 8% (simple). Regards, Mad Nick.

 

PS I see no reason not to change your claim between LBA and N1.

[Smellipants]

Mad Nick - I could give you a mad hug! Thanks for all your help. I'm finally clear on where I'm going with this, will update the post with my progress.

Thanks,

Pete.

[Smellipants]

Anyone know if my court fees take interest into account? My basic amount that I'm claiming is £988.50, so obviously if I include either compound or 8% on that, it'll take it into the next bracket of court fees (£120).

If the fees are only charged on the basic amount then it'll be £80 - please could someone confirm?

 

Also, they put a GOGW of £245 (even tho they stated £230) in my account. I should take this £245 off of my most recent charges and submit the claim for £743.50 (plus interest) - does that sound right?

[Mad Nick]

Smelli, you're going to love this. If you are claiming just the 8%, then the Court fee is just worked out against just the charges you are reclaiming. If you are reclaiming contract interest then the Courts seem a bit confused - some people have got away with the Fee relative to the charges, but others have been nabbed for the Fee relative to the charges + interest. You get it back either way, but of course £80 is £80.

 

As for the GOGW, you should reduce your total claim by £245 and make crystal clear on the front of the N1 that that's what you've done. But don't remove £245 worth of charges from your schedule because that way you'll also lose the interest on them. So your claim is £988.50 + interest - £245. Regards, Mad Nick

PS I promise I didn't tell everyone else that only I'm allowed to reply to your posts !!!

[Smellipants]

Thanks for all your help Nick.

Have submitted the N1 today for £988.50 + 16.90% Contractual Interest (-£245).

A little later than planned, and had to do it by post as my wife and I have trouble getting into town during the day, but I'll update the thread as things unfold!

[Smellipants]

Abbey were served with the court papers on the 28th Feb.

They have until 14th march to respond.

[Smellipants]

Abbey decided to defend (suprise!), and I received the defense in the post this morning, so just waiting for the AQ to arrive.

 

Just out of interest, I note that on a lot of the other threads I've looked at, Abbey have offered a 50% settlement. Does this letter arrive within the same as the defense paper? If not (assuming Abbey have not offered a 50% settlement), is this out of the norm or am I just being paranoid?

[Mad Nick]

Hi, yes the 50% offer to me was in the letter attaching their defence. Maybe they have a CAG detection device and only bother with people who might give in. Regards, Mad Nick