A New Way of Looking at Interest- 1st successful Claim - N'wide

[alanfromderby]

It is my intention to apply for 16.9% on my Abbey claim - and have included that on my prelim letter which is due to be posted tomorrow.

 

Just to clarify - assuming that it gets to the court claim stage - which with Abbey seems to be the norm, would this do for additional wording on the Particulars of Claim:

 

"The Claimant also claims interest at a rate of xx% as set out in the attached list of charges. The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants overdraft interest rate that would be applied under the terms of the above mentioned account.

Should the court find that this interest rate is not applicable, then as an alternative the Claimant wishes to claim interest pursuant to section 69........"

[alanfromderby]

Therefore if you take as an example a £500 overdraft facility which now stands at £750 including £135 of unlawful charges and you then pay in £150, would the Bank, the Court or you take the

position that the £150 pays off the unlawful charge first? Or would the view be that

the charges would be the last to be paid?

 

That is irrelevant, since the bank is indebted to the customer for the amount they have unlawfully taken - from they day they took it, to the day they repay it. That means the day the charge was levied, to the day of final settlement.

 

It makes no difference in this case what the balance of the account is - indeed the interest applied on the charge by the bank would still need to be added, and 16% (for instance) applied to that also.

[alanfromderby]

I think Alan has picked up on the other, rather more compelling argument. Cumulative penalty charges over the years have put him in the position that he is being charged interest on his account (an unnecessary overdraft) as well as on penalty charges. In this it could well be argued that he can claim the higher rate on ALL interest charges, not just the pro-rata penalty element.

 

No, my account is not in overdraft, all charges that have been levied have been effectively paid. The argument is that the bank has had my money in their possession.

 

If I wanted an overdraft, the bank would charge me 16.9%

 

Effectively, they have unlawfully "borrowed" those charges from me for whatever period may apply for each individual charge.

 

If their contract says I should pay 16.9% when I borrow money off them - why shouldn't they pay 16.9% when they borrow money off me?

 

That is my understanding from Bankfodders original post on this thread.

[alanfromderby]

I have been trying for the past hour to get the extra text to fit into the moneyclaim form - unfortunately I have to admit defeat.

 

I would also suggest a rework of the text I used earlier in this thread, as it is important to quantify the interest element on a daily basis in monitory terms. This is the text I have come up with:

 

"The Claimant also claims interest at a rate of xx%, from the date of each transaction to (date of claim) of £xxxxxx, as set out in the attached list of charges. The claimant further claims interest at the same rate up to the date of judgment or earlier payment, at a daily rate of £xxxxx per day.

 

The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants overdraft interest rate that would be applied under the terms of the above mentioned account.

 

Should the court find that this interest rate is not applicable, then as an alternative the Claimant wishes to claim interest pursuant to section 69........"

 

Unfortunately this has even less chance of fitting onto a moneyclaim form!

 

Sorry!

[alanfromderby]

Yes.

[alanfromderby]

Remember to send three copies of N1.

[alanfromderby]

Of course, as you say this has to be tested through the courts - if the banks have the stomach for the fight. However, don't forget that the County Court allows 8% for the life of each charge anyway.

 

The contention is that whilst 8% is reasonable where no contract exists - where a contractual interest figure is applied by one party, why shouldn't that not apply to the other.

 

Yes, I would agree with the taxation point, as that could be seen as "unearned income on investment", and would have to be considered carefully. However, would that apply to the 8% as well?

 

Theft? I think if you could prove that they took it under those circumstances, then that would increase the likelihood of the interest argument being accepted anyway.

[alanfromderby]

The banks could rightly claim that at no time did they consider their charges were repayable, nor was there a loan agreement, a specified payback time, or specified interest rate.

 

This is the point of the "mutuality" and "reciprocity" issue. Their contract to the customer does put these responsibilities onto the customer - the argument is that it should apply in reverse.

[alanfromderby]

2. Having sent my prelim letter, do you think I should send another prelim letter claiming the extra interest, or could I say on LBA (due to go Friday) that I have recalculated interest?

 

In your LBA I would say something like:

 

since my previous letter I now understand that the principle of mutuality, or reciprocity, applies to the aforementioned contract etc.

[alanfromderby]

So do you think I should resubmit the preliminary letter or change the interest amount on the LBA? And just to confirm, you think 16% would be reasonable for the entire period to date, despite the account now being closed?

 

Also should I attach documentation showing my calculations?

 

 

I am using 16.9% - which is Abbey's currect advertised o/d rate, I also say in my LBA that I believe that I could have claimed the unauthorised o/d rate - but that "as a gesture of goodwill" I am only charging them the authorised rate.

 

I would not send the calculation with the LBA - they should be able to work it out for themselves. Obviously you should attach it to the N1, and if you are using this approach please be aware that the extra text you need makes it impossible to fit onto moneyclaim.

[alanfromderby]

CPR 26.8 (2)(b) states that claims for interest should be excluded from the decision on whether a claim should be deemed to be within the £5,000 limit. The lawpack is in error on this, and I understand somebody is currently trying to get in touch with the writers regarding this error.

 

It would certainly be worth getting back to the person at the court who advised that this was not the case, and ask why they gave the advice they did in the light of CPR 26.8 - we would be interested to hear what their response is.

 

My understanding is that the total money including interest etc should be entered in the amount claimed box - however, the interest should be disregarded when it comes to deciding on the track.

 

If your claim is affected by this, to ensure that it goes on the correct track, I would advise including on the Allocation Questionnaire that the claim be heard through Small Claims Track, quoting CPR 26.8 as the reason for your assertion.

[alanfromderby]

Actually meagain, you have brought up an interesting point. If your credit card charge a cash advance fee, then perhaps we should add that to each charge taken as well?

 

Just a thought.

[alanfromderby]

As far as I am aware you cannot change your claim via the AQ - I am fairly sure that you would need to amend the original claim, and then the court will reissue the N1. However, there is a charge for this which is not recoverable, and it will seriously delay things.

[alanfromderby]

The problem is that the N1 is a legal document, and your case will go forward on the figures you have given. Any change now will costs you money, and will delay payment.

 

Obviously you could speak to the court office, but I really do feel that you are in a corner on this one. Sorry I cannot be more positive, but it is vital that people check every line of their claim before issuing.

[alanfromderby]

I believe that you are able to amend the claim, however, as I said above there is a fee for this which you would not be able to reclaim. I think the best advice is to ring the court in the morning and and ask what they suggest for a way forward.

 

With the AQ deadline being tomorrow you well need a senior person at the court to approve anything that means you will not be filing - you don't want to end up with your claim being struck out.

[alanfromderby]

I am a little confused that you say you have read through the thread and cannot see the legal basis. That is discussed in detail in posts 1 to 5, and then in various other posts in the thread.

[alanfromderby]

Very strange reply, and one which gives cause for concern in several respects.

 

Firstly, you will find that where a question is asked of which I have some knowledge I will either answer it, or point the user to where the question is answered.

 

Secondly, the issues discussed on this site often result in the user taking actions that could end up in a court, in front of a District Judge. It is therefore vital that the individual has spent the time reading, re-reading, and understanding the issues that they may have to argue.

 

I strongly resent you comments about a dyslexic. I would note that you have not made any reference to that in your previous post, and you have not suggested that this is an issue in your reply above. However, you have made a wild accusation that we somehow discriminate against dyslexics. I would add that I am always open to users sending PM's when they have genuine difficulties with understanding the process, or through any disability.

 

To suggest that a mod would "not fancy answering" is both patronising, and untrue. Admin, mods, and site helpers give their time freely to this site, and are always willing to answer questions where they can - however, the answer to the question you asked is in this thread....and part of it was posted by me.

 

I make no apology for pointing users to the FAQ's, after all that is what they are there for. Another point to ponder...how do you think those answers got into the FAQ's?

 

The answer is, that the VOLUNTEERS that GIVE their time to help others get their money back from the banks, have spent their own time researching answers to questions, and trying to keep one step ahead of the banks expensively funded legal departments.

 

The aim of this site is to empower the user - not to do everything for them.

[alanfromderby]

 

Just to clarify a point, though. My understanding is that, should you need to go to court and complete the N1, statutory interest is not to be included in the amount of the claim, whereas contractual interest is. Do I understnad correctly? Am I also right in assuming that MCOL doesn't allow you to fix an alternative rate of interest?

 

 

No, you need to include the interest in the amount claimed box - even if just claiming section 69. Obviously if you are claiming contractual, with the fall back of s.69, then just include the larger amount.

 

However, contractual interest does count when calculating which track, where as section 69 interest does not count.

[alanfromderby]

You can change your claim at anytime up to when you file your court claim.

 

The only thing is that, if you have given them a figure for settlement along with a 14 day time limit, you are duty bound to honour that offer. After the 14-days have elapsed, they have had their chance to settle, and you then have no problem with changing the amount you are claiming.