Contractual Interest? - Judge doesent seem to think so

[golfscape]

At allocation hearing today I was told by the Judge that id better think carefully and perhaps seek advice before pursuing a contractual/compound interest claim.

 

That ive a reasposibility to mitigate my loss and that court could order costs against me if I pursue a claim to which im not entitled referring specifically to contractual interest.

 

The Judge did say that he could not give advice, yet everything he said suggested I should not push this further without be absolutely certain I knew what I was doing. He gave the impression he would be suprised if I won this contractual interest claim.

 

History - Claim for 5.5k penalties plus 5.5k contractual interest. Nothing from SCM (Lloyds) until 2nd feb when penalties are paid in to my bank account. Very suprised as no communication from SCM at all prior to this.

 

5th Feb allocation hearing, SCM claiming all penalties repaid, therefore only contractual interest in dispute.

 

SCM took the position that as there was now no claim there was no need to allocate! Judge obviously sympathetic to this argument as ordered 28 day stay so that SCM and I could agree final terms.

 

SCM were of the opinion that as an individual I could not claim contractual/compound interest, Judge did not disagree.

 

I can understand Judge not wanting this to take up any more of his valuble time but I was not expecting him to caution me against pursuing what I see as the rest of my claim.

 

The claim was for penalties plus contractual interest from the outset, SCM obviously think that by settling now they can avoid the contractual interest and im not encouraged one bit by the Judges comments.

 

Where do we all stand? can we pursue contractual/compound interest or not?

[CrispDust]

What legal basis did SCM use that you as an individual could not claim contractual interest?

SCM have no trouble charging you interest as an individual!

Whether you are a "business" or an individual, they have unlawfully taken your money and denied you access or ability to earn interest on it.

Did you claim sat. s.69 8% interest as well?

[Glenn UK]

More to the point what did you say to assert your right to claim contractual interest?

 

Putting it on the form is only the start, you should have made you claim at the allocation hearing in principle, now you have to change the courts mind and this is never easy.

 

Secondly this again highlights the problem of taking part payments, something which the new templates will hopefully prevent.

 

Not sure what to say, it would be best if you set out what you put in your claim and what you said in defence of that claim.

 

Glenn

[Bigmac versus]

Maybe the judge was referring to the individual can not claim contractual as the individual has no license to do so, the banks do therefore the banks can, just a thought ive always had in my head, i know the arguments for starting a claim but this was always nagging away at me.

[Glenn UK]

George the arguments for are based on what the bank did with your money when it had it, if you haven't made that link to the court then i have no doubt they wont even entertain it.

 

Glenn

[Bigmac versus]

Yes Glen i know where your coming from but it is where the judge is coming from that we need to look, The banks are licensed to loan money out and charge an interest on that, to simply say because of that we wish to be paid back contractual interest may not wash, the judges thoughts may be that as an individual we do not hold such a license and therefore can not claim anything other than the judicial interest.

 

Why has the judge said as an individual, i can t come up with anything else.

[progenic7]

hmmm ok so lets start with the basics, what are the arguments for claiming contractual interest answering as if you were in court ?

[Glenn UK]

George

 

The courts function is to deal with facts put before them and work out how that relates to the law.

 

If the claimant stands up and say i think i can claim it because i saw it on a website or something similar then what would we expect him/her to say?

 

The argument has nothing to do with licenses its to do with the bank being unjustly enriched by taking your money and using it to lend to other customers.

 

JMHO

 

Glenn

[Bigmac versus]

Yes thats right Glenn Facts and only the judge will decide on this.

The bank have a right to charge an interest rate on money borrowed lawfully or unlawfully as set out in their terms and conditions.

We as an individual have no right to levy an interest to the bank or anyone for that matter without the required license. This is the judges decision and id agree with that and it would help to put a case together that could help persuade the judge and i say that word PERSUADE because i believe that the judges will not side on the side of the claimant in regards to contractual interest. This does not change depending on what the banks done with this money and this may be what the judge sees also. Your views Glen are always appreciated and lets hope someone gets a judge with a sympathetic ear.

[Glenn UK]

It has nothing to do with sympathy, it has to do with presenting the facts, all you keep on about is the banks have a license, it doesn't give them the right to take money unlawfully, does it?

 

have you considered that the interest charged when we incur a penalty is also unlawful?

 

Does it give them the right to borrow your money on the basis of being interest free?

 

Does it give them the right to use the money unlawfully taken, to earn interest and then at some stage assuming we claim it back, to return just the principle?

 

This license is a wonderful thing if it lets the bank do this, but somehow i don't think it does.

 

What we have a right to do is to have returned to us money taken from us, it unjustly enriches the defendant, where they have gained advantage from that money by way of interest you have a right to asked for that back too.

 

It would be unconscionable to allow them to keep the benefits of the unlawfully removed money, they would remain unjustly enriched.

 

This doesn't mean that you or i will actually get back the highest rate, which is why you normally put something along the lines of or whatever rate the court deems appropriate.

 

It seems to me George that you spend a lot of time worrying about the banks license but don't seem to consider it doesn't allow them to do what they have done with our money.

 

The court doesn't determine what is fact or fiction, unless of course they decide someone doesn't have any proof, they only take the facts presented and make a judgement based on them.

 

If you have a convincing argument about why not which takes account of the nature of the charges then lets have it.

 

Glenn

[Stornoway]

We are all second guessing the judge here which is obviously not ideal. Frommy limited knowledge the contractual is being claimed under the concept of reciprocity so perhaps it comes down to the claimant in this case understanding the law surrounding reciprocity and more importantly having outlined this concept in the court docs ?

[golfscape]

Thanks Crisp & Glenn

 

Ok lots of points to answer here.

 

Its one of those experiences that you benefit from reflecting on for a while before trying to put down on paper.

 

Firstly one important point not made clear earlier, the allocation hearing is stayed for 28 days for SCM and I to try and agree settlement. If I go back I need to be well prepared! It was not the right time to press all issues as none of us including SCM agent knew what had really been offered/paid, hence stay.

 

On reflection I beleive the Judge was underlining the need to be properly prepared, not necessarily saying dont do it, but be aware of the risks, get it wrong and you will get hurt. He was suprisingly outspoken on what hethought of the actions of the banks and their tactics

 

SCM came unprepared, had no record of my draft directions, AQ or previous correspondence.

 

SCM did not set out legal basis for their opinion re my eligability to claim contractual, at this stage could best be described as an opinion. This will need to be fully explored for allocation hearing number 2 in 28 days. I will need to write to them in the next few days, this issue will be included. Any ideas on letter content much appreciated.

 

Yes I claimed s.69 8% in alternative. Primary claim for 29.8, then 18.2 and then s.69

 

I made it clear to both Judge and SCM that I intended to continue my claim for contractual, perhaps thats why he felt it necessary to make the comments he did, he also indicated that it was very unusual for a clsim to get this far and someone from the bank to actually turn up, most had settled by this stage, presumably most had settled for s.69 if any interest at all. Perhaps no contractual interest claims have reached this point? could that be right? is this new ground for my court? perhaps others have been settled before being fully argued

 

Did not get the opportunity to discuss whether from my position contractual interest was justifiable although they know I feel it is, this will be for next hearing if we get that far. Been told that if it goes ahead it will be small claims

 

Key to this is convincing SCM that 1) im not shy of going all the way 2) I have strong enough arguments to put the fear of god up SCM and 3) that the Judge is likely to concur with those arguments. Is that all!!

 

I had little time to respond to the money paid into my account (the weekend) however before going in to court I wrote a letter which I gave to SCM and Judge prior to hearing. Letter made it clear that without knowing details of payment as no correspondence received supporting payment I 1) rejected any attempt of full and final settlement on the basis that it was less than that clamed 2) rejected any conditions that they might have tried to apply 3) the fact that money was transferred in to my account did not mean I accepted it 4) I authorised them to remove the sum immediately 5) invited them to settle claim by leaving initial paymment in place and adding the outstanding balance.

 

I understand that the arguments are key, reading them here is one thing, its quite another to present them to a Judge and adversarial agent, ive got another 4 weeks to polish a really strong presentation.

 

Glenn, particulars of claim were adjusted slightly to suit my own circs but follow the mutuality and reciprocity principles suggested herein. As mentioned above did not get opportunity to address issue in detail but it will come in 28 days!

[lucid]

Secondly this again highlights the problem of taking part payments, something which the new templates will hopefully prevent.

 

Completely see what you're saying here Glenn but unfortunately in golfscape's case they have just credited the account without prior warning - they've just done the same to us on all three of our accounts. They then write to the court telling them that they have settled the claim in full! This doesn't matter though as the court don't pay attention the letters from the Defendant until they hear from the Claimant.

 

Good luck golfscape. Lucid

[Guest bong]

hi golfscape, I'm hoping you might find something in here to help you http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/49074-can-we-have-new-5.html#post539451

 

Edit - I know you've passed the claim stage but didn;t know if there are some arguments in there you could use.

[Bigmac versus]

So you are saying that you wish contractual interest as the banks have been unjustly enriched by the taking of your charges? How do you know they were unjustly enriched by your charges, surely you would have to prove they were rather than the banks proving they werent.

I have had a small claim setled which included contractual interest but this was settled before court, i feel that the best chance of getting this would be for the banks to pay up before court as they wouldnt like to take the chance in court. Wouldnt know what a judge might think of it regardless of what the bank had as a defence or you had as a case.

[Glenn UK]

Golfscape

 

Theres lot to go on there and its very helpful because it clears up some of the questions i and I'm sure others have.

 

Re the payment into your account, FWIW i think you have done well with your response.

 

As far as I can make out there is no 'principle of reciprocity and mutuality' at least in a legal sense, abbey have just asked for an explanation so i need to put my thinking hat on, but i have a bit of time till i need to respond and have an AQ hearing before then.

 

I am busy preparing for that, which funnily enough does include references to unjust enrichment, and once i have got past the AQ i will be happy to try to help if i can.

 

I cant point you to any particular case law off the top of my head, may i suggest if you haven't already, try ask.com as well as google.

 

I have used both and found between them i can usually find some info.

 

If i can hep please feel free to pm me.

 

HTH

 

Glenn

 

PS despite the fact i don't always agree with her, Bong being here is a big help, as are lucid, Crisp and others.

[Guest bong]

As far as I can make out there is no 'principle of reciprocity and mutuality' at least in a legal sense, abbey have just asked for an explanation so i need to put my thinking hat on, but i have a bit of time till i need to respond and have an AQ hearing before then.

 

I am busy preparing for that, which funnily enough does include references to unjust enrichment, and once i have got past the AQ i will be happy to try to help if i can.

 

I cant point you to any particular case law off the top of my head, may i suggest if you haven't already, try ask.com as well as google.

 

glenn did you read what I had posted in that link about mutuality etc? Just thought I'd give you somthing else to disagree with:p

[Glenn UK]

So you are saying that you wish contractual interest as the banks have been unjustly enriched by the taking of your charges? How do you know they were unjustly enriched by your charges, surely you would have to prove they were rather than the banks proving they weren't.Simply the fact they have your money which they aren't entitled to means they are unjustly enriched. ultimately if the court rules in your favour ie the charges were unlawful, then they have to return what they took plus what they made on it as far as i can tell. Whether we have to prove in detail what they actually made or whether we would have to accept a judgement would of course be down to the court. The court could order them to investigate how much they made off the back of the sums they took. I'm not sure a court would go this far, and would probably say its reasonable to apply a mid point of some sort.I have had a small claim settled which included contractual interest but this was settled before court, i feel that the best chance of getting this would be for the banks to pay up before court as they wouldn't like to take the chance in court. Wouldn't know what a judge might think of it regardless of what the bank had as a defence or you had as a case.

 

I too had a claim for contractual paid out before court, I do agree it would be up to the judge but i think the arguments are founded in law for unjust enrichment, and using the highest logical rate seems entirely logical but with the caveat that the court will award whatever it thinks.

 

Glenn

[Glenn UK]

Glenn did you read what I had posted in that link about mutuality etc? Just thought I'd give you something else to disagree with:p

 

Bong i think i did, but Ive been a bit busy today and am busy right now on my 'paper' for my AQ Wednesday. ill look as soon as i have a bit more time.

 

Glenn

 

PS Moi disagree? Nooooo your confusing me with some other awkward git

[Bigmac versus]

Very true and the banks like us will want to avoid court on this issue and that often turns the claim into a game of poker face, lol.

[Guest bong]

Bong i think i did, but Ive been a bit busy today and am busy right now on my 'paper' for my AQ Wednesday. ill look as soon as i have a bit more time.

 

Glenn

 

PS Moi disagree? Nooooo your confusing me with some other awkward git

 

BUT BUT BUT. .. I just thought it might be relevant to what you're working on for Weds? maybe not then

[Glenn UK]

Id best go look then hadnt I?

 

Thanks for taking the trouble.

 

Glenn

[gizmo111]

http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/36034-case-management-conference-13th.html

 

This may help

[InKogneeToh]

Golfscape

 

 

As far as I can make out there is no 'principle of reciprocity and mutuality' at least in a legal sense, abbey have just asked for an explanation so i need to put my thinking hat on, but i have a bit of time till i need to respond and have an AQ hearing before then.

 

I am busy preparing for that, which funnily enough does include references to unjust enrichment, and once i have got past the AQ i will be happy to try to help if i can.

 

I cant point you to any particular case law off the top of my head, may i suggest if you haven't already, try ask.com as well as google.

 

I have used both and found between them i can usually find some info.

 

 

Hi

 

I don't know to what extent you will be using unjust enrichment in your claim but I have several saved documents/articles/court cases on the subjects of unjust enrichment/restitution/mistaken payments that I would be happy to send to anyone via email if it would be of any help.

 

Regards, Pam

[millymollymoo]

More to the point what did you say to assert your right to claim contractual interest?

 

Putting it on the form is only the start, you should have made you claim at the allocation hearing in principle, now you have to change the courts mind and this is never easy.

 

Secondly this again highlights the problem of taking part payments, something which the new templates will hopefully prevent.

 

Not sure what to say, it would be best if you set out what you put in your claim and what you said in defence of that claim.

 

Glenn

 

Glenn firstly,CONGRATS! on the birth of your son!!

 

I agree about the partpayments in contractual cases being tricky as this is what the cheeky b*****s are up to now. The whole reason I have fully rejected the offer. However, in the back of my mind I wondered if the court would think I'm unreasonable for doing so. My assumptions however are this leaves them to disclose the charges and if they STILL do not want to do that whenit gets to the deadline of my claim, then it forces apay up with the Contractual interest to avoid this. However, after reading what has happened and their sneakiness of paying just before court appearance, then we ALL may be going down this contractual argument route. I prepared a argument on sunday on the main contractual thread incase!

 

Milly X