Claiming on a Business account? Lets join forces?

[TINK660]

Hi Rhia,

 

I have already challenged on the statute barred issue.

 

I wasnt aware that the FOS dont deal with business complaints, looks like thats another avenue closed for me then.

 

TInk

[MARTIN3030]

The Fos regulated the Business banking codes from early 2000-but prior to this sole traders and partnerships were covered under the existing code which was set up in the 80s

 

here is some info from a FOS news issue if 2002

 

 

the Business Banking Code

 

The Banking Code has been around now for just over ten years and has reached its fifth edition. It has been open to criticism from some quarters – not least because it is both written and approved by the industry itself. But it has undoubtedly played a significant part in improving standards.

The Code is reviewed regularly and we published our submission to the current review in the March 2002 edition of ombudsman news.

In previous submissions, the former Banking Ombudsman Scheme had suggested that a similar code be set up to protect the interests of its small business customers.

There seemed no good reason to us for not having such a code – particularly bearing in mind that when the Banking Ombudsman Scheme was set up in 1986, it was open to sole traders and partnerships right from the start. And nearly ten years ago it was widened to cover small companies.

So we welcome the new Business Banking Code – which came into force on 31 March. We have already started to apply it where it is relevant to the cases we receive.

We also welcome the Business Banking Code’s similarity to the Banking Code. This will facilitate promotion of the Code principles, staff training and customer protection.

But there is one significant area where the new Business Banking Code goes further than the Banking Code. The new Code covers merchant services (sometimes called merchant acquiring). Merchant services are the facilities a bank provides to allow its business customers to accept debit and credit cards for paying goods and services.

We were anxious for merchant services to be covered by the new Business Banking Code. It’s often a difficult area, and we receive a disproportionate number of complaints from business customers about problems with their merchant services facilities (the December 2001 edition of ombudsman news gives some typical examples). So, not only have our views on this point been taken into account in the drafting of the new Code, but we’re now able to look to it to help us resolve this type of complaint.

Copies of both the Banking Code and the Business Banking Code are available from www.bankingcode.org.uk

[MARTIN3030]

AS I recall -there was no real material changes to the codes between the periods of your account.

You can easily get a copy from the BBA website.

[TINK660]

So Martin, are you saying that as a sole trader I should be able to take our complaint to the Ombudsman?

 

Thanks

 

Tink

[MARTIN3030]

Yes absolutely.

Although I think it needs mentioning that it needs to be a complaint that is clear cut charges.

If there were outstanding loans etc then the FOS are likely to say you should pay them.....or that you owe THEM if you get my jist.

 

I dont know whether you wish to consider going down the other route thats in focus now regarding fairness etc.

Can you say if you had any transactions that were covered under the consumer credit act ?

Do any of the charges relate to late payments on loans ?

You should condsider filing for ammendments to your POCS that include some stuff we were not using in the early days.

If you are on low income then you will qualify for fee remission (or certainly partial)

This would not affect any action you have with the FOS or visa versa.

 

Have the bank or the Court had any comms with you since the judgement handed down following the test case ?

Also did you read my earlier post in this thread ?

Smith ruled that he was unable to rule on unfairness under common law for NW terms pre 2001.....I know this was mainly in reference to card operations but he also said that claimants could have course of action for other terms he was not looking at-or should I say that he said there may be other factors brought up...something to that effect.

Have you by any chance got a copy of your terms and conditions ?

[MARTIN3030]

Sorry just looking....Its uncertain if you have filed a claim yet in Court or not-can you confirm ?

[TINK660]

Hi Martin,

Sorry for not posting back sooner, the complaint is clear cut charges, no loans involved. The bank actually rejected the complaint (even with the hardship element) because the court case did not apply to business accounts. I havent heard anything else from Nat West since the rejection.

 

I have not gone down the court route as yet as I thought I would try the Financial Ombudsman first as that leaves me the court route if I get no joy with the FOS but I cant do it the other way around. The complaint is a large one - approx £11,000 worth of charges from 1991 to 2001.

 

I have drafted a letter to send to Nat West, if after reading it you think I should make any amendments or rewording please let me know - the letter is below:-

 

Dear

 

I have previously contacted you with regards a claim for bank charges that you have rejected. I have also sent you evidence of hardship as requested previously.

I feel that in issuing these charges you have broken the FSA’s regulatory principle to ‘pay due regard to the interests of its customers and treat them fairly’ and I am writing to request that you reopen my complaint taking into consideration the following new grounds:

I believe the fact that I have been incurring bank charges goes contrary to the aims of the Lending Code (Section 9) and Banking Conduct of Business Sourcebook (section 5.1.4 ‘in particular, a firm should deal fairly with a banking customer whom it has reason to believe is in financial difficulty’), and previously were contrary to the Banking Code. My personal situation has been affected by the charges leaving me in financial hardship in the following ways:

My income was being eaten up by repaying charges, payments were regularly returned unpaid which left me in the position that when a customers cheque was paid in (on some occasions the same day) several charges reduced the actual amount that should have been credited. This contributed to us struggling to meet basic necessities such as mortgage, council tax food, utility bills etc. The charges caused us to struggle financially and to rely more on credit which we are still struggling to repay. The amount of charges were on some occasions completely disproportionate to the amount we went overdrawn for example a charge of £27.50 for going overdrawn for as little as £1.00, and, on occasion you charged a total of 4 of these charges a day for unpaid cheques (a daily total of £110).

To summarise I believe that these bank charges have contributed to making our financial hardship situation materially worse and that the charges were disproportionate to the “offence” and that they resulted in us being stuck in a cycle of charges that we were unable to break out of before new charges were applied.

I now ask that you repay the amount I have previously requested of £..... plus interest a court would award of 8%. I again enclose a list of charges incurred.

I look forward to a full response to this letter within 14 days and if I do not receive a satisfactory response I intend to pursue my complaint to the Financial Ombudsman Service without further delay.

The FOS have advised that they will now look at hardship cases and there is no time restriction made on how far back the complaint goes. I hope that we can now settle this matter without the need of the intervention of the Financial Ombudsman and I look forward to receiving your earliest reply.

Yours faithfully,

[MARTIN3030]

Ok understand.

If your last comms with NW were more than 8 weeks ago then as far as the FOS is concerned you will need to give them the 8 weeks again-I know its a pain.

So send in a further income and expend sheet.

It would do no harm to file a complaint with the FOS immediately so that you have a reference number.they will return your complaints form and ask you to resend it after NW final response or 8 weeks-whichever is the sooner.

I have to say tho-we dont have much faith in the FOS-they have been far from impressive and shown themselves to be useless.

 

Maybe you should think about the Court route ?

 

You are unlikely to get any joy from the FOS inside of 6 months.

Court action will not affect any dealings with the FOS or vice versa.

[TINK660]

Thanks Martin,

 

I will amend the letter to read 8 weeks and get it sent with income expenditure.

 

I must admit the thought of taking them to court is daunting, I'm not very good at getting my point across in difficult situations and also the cost involved is off putting.

 

I do know what you mean about the FOS though, I have several ppi complaints with them, a couple of which they have already upheld but they will not taken into account the issue of compound contractual interest on credit card ppi and taken forever to deal with complaints in the first place.

 

Tink

[MARTIN3030]

Yes I understand your concerns-and the figures are well out of SCT which do leave exposure to costs.

Will be in touch I might have an idea.

[TINK660]

Martin,

 

That sounds interesting look forward to hearing what your "idea" is!

 

Tink

[Bigdebtor]

Yes I understand your concerns-and the figures are well out of SCT which do leave exposure to costs.

Will be in touch I might have an idea.

 

Martin

 

Others are following thsi with great interest. Can you share your idea with us all?

 

BD

[TINK660]

Martin,

 

If you read this, please let me know what your idea might be - the suspense is killing me!

 

Tink660

[TINK660]

Martin,

Please let me know what your idea is - the suspense is killing me - tried to pm you but your box is full!

Tink

[Craigbadger]

Hi all

Sorry if these are boring over asked questions but whats going on with business charges?, I know personal accounts are not unlawful and can only be reclaimed on hardship.

Whether its relevant or not but Lloyds shut my business account because I wasnt managing it correctly, masses of charges in there though. Hadnt thought about it till now but the way they closed the account was pretty disgraceful in the way of a blunt letter along the lines of "you are not the sort of customer we want, 30 days to bog off". As far as I can see the only issue with my account was that I was struggling to repay the extra charges every month and therefore going over again.

 

I did do a SAR to Lloyds but nothing about the business account.

 

Could someone give it me in simple terms?, i'll have a read but ive got a lot on at the mo.

[MARTIN3030]

I think that you do need to read up-thats the best way of gleaning some understanding.

Tink my pm box has a little free space now.

Can you post a link here to yor thread in regards to this ?

[aph101]

I would very much appreciate some advice. I have 2 claims running, both for business accounts with Nat West. In one business I am a sole trader, in the other a partner in a private firm. In both cases the claims are stayed by Bishop Auckland Court until 2 calendar months after the result of the OFT appeal. I therefore need to due something by January 25th.

In each case the POC that I submitted was as follows (in line with the suggested business POC from this forum):

1. The claimant had an account .... opened before 01/1991 and closed after 08/1999.

2. During the period in which the account was operated the Defendant debited numerous charges to the account in respect of purported breaches of contract on the part of the claimant and also charged interest on the charges once applied. The claimant understands that the defendant contends that the charges were debited in accordance with the terms of the contract between itself and the claimant.

3. A list of the charges applied is attached .....

4. The claimant contends that:

a) The charges debited to the account are punative in nature .....

b) The contractual provision that permits the defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

5. Accordingly the claimant claims:

a) return of charges ...

b) courts costs ...

c) interest ...

 

 

In each case the defence put forward by Cobbets is as follows:

1. This defence is filed and served without prejudice to the Defendant's case that the POC do not disclose reasonable grounds for bringing a claim against the Defendant to recover the bank charges ....

2. Without prejudice to the foregoing paragraph, if and to the extent that the Claimant proves the allegation that the Defendant debited charges to the Claimant's bank account, insofar as such charges were debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect of the same, wether damages, restitution or otherwise, is barred by the operation of the Limitation Act 1980 and/or the doctrine of laches and the Defendant will apply to strike out this aspect of the claim and/or for summary judgement.

3. On allocation the Defendant invites the court to direct that there be a case management conference ...

4. No admissions are made as to what charges have been debited to the Claimant's bank account.

5. In relation to the allegation that the bank charges amount to an unenforceable penalty the Defendant pleads as follows:

5.1 In order for the claimant to sustain a claim that the charges debited by the defendant are in the nature of a penalty the claimant will need to plead and prove (a) the clauses pursuant to which the charges were applied; (b) that the charges were applied due to a breach of contract by the claimaint; and © identifying in each case the particular breach of contract (by reference to appropriate terms of the contract) that the charge relates to. As presently pleaded the claim does not plead these matters and therefore does not disclose reasonable grounds for bringing a claim that all or any of the charges referred to in the POC have been applied pursuant to an unenforceable penalty clause.

6 In relation to the allegation that the fees and charges are contrary to common law, the claimant is required to identify:

6.1 the principles of common law relied upon by the claimant; and

6.2 if it so alleged, the contractual provisions which the claimant alleges are affected by these principles of common law.

7. Until such time as these common law principles and contractual provisions (if any) are identified the defendant cannot plead to the allegation referred to in paragragh 5 and 6 above. The defendant therefore reserves its right to plead further to the allegation once (and if) the claimant identifies the relevant contractual information.

8. In relation to the allegation that the contractual provisions pursuant to which the charges have been applied are invalid pursuant to the UTCCR1999.

8.1 The claimant is a firm and accordingly the regulations do not apply in this case.

Should I ask for the stay to be extended, ask for the stay to be lifted, or something else. If lifted - on what grounds?

Thanks.

 

I have been granted a further stay in these cases and now wish to amend the POC and apply for the stay to be lifted so that the case can be heard (in the hope that Nat West will settle rather than defend the claim).

 

I would appreciate advice on what I should be including in the new POC.

 

Thanks

[TINK660]

Martin,

 

It's this thread - from post 1771.

 

TInk

[TINK660]

Also:-

gives a little more background info

 

Nat West Problem - Pre 6 Years Business Claim

Sorry - dont know how to insert link!

[aph101]

Is anyone able to point me to a suitable set of POC for my claim? I have looked in the library, but the templates seem to be for consumer claims, not business.

 

I need to submit by Tuesday lunchtime, so an early answer would be appreciated.

[TINK660]

Nat west complaint now submitted to FOS - long wait I think! Still been going on now for about three years so a bit longer wont hurt.

[TINK660]

Well, so much for the FOS helping, took all of about 4 weeks for an adjudicator to make the assumption that he doesnt feel our complaint should proceed. Seems to have completely disregarded copies of letters we sent to nat west concerning a breakdown of communications with the bank (ie bank manager refusing to talk to us on the telephone) and the fact that they kept our overdraft facility at £1,000 when we were independantly advised that we needed an overdraft facility of £5,000 for the business to prosper. They kept the overdraft at that level so that they could continue to charge extortionate charges. He also indicated that as the account was closed over nine years ago and we no longer ower Nat west anything there was no case for redress - since when has there been a time limit!

 

I am so disappointed at this response, we know Nat west treated us badly, but I am at a loss to know what to do next. Court seems too risky now as they could be large costs involved as amount involved is over £11,000.

 

Tink

 

By the way Martin if you read this, you did mention in an earlier post that you may have an idea but didnt elaborate on it or follow through with what that idea might be, if you have any ideas please please let me know.

[Ibsys]

Well, so much for the FOS helping, took all of about 4 weeks for an adjudicator to make the assumption that he doesnt feel our complaint should proceed. Seems to have completely disregarded copies of letters we sent to nat west concerning a breakdown of communications with the bank (ie bank manager refusing to talk to us on the telephone) and the fact that they kept our overdraft facility at £1,000 when we were independantly advised that we needed an overdraft facility of £5,000 for the business to prosper. They kept the overdraft at that level so that they could continue to charge extortionate charges. He also indicated that as the account was closed over nine years ago and we no longer ower Nat west anything there was no case for redress - since when has there been a time limit!

 

I am so disappointed at this response, we know Nat west treated us badly, but I am at a loss to know what to do next. Court seems too risky now as they could be large costs involved as amount involved is over £11,000.

 

Tink

 

By the way Martin if you read this, you did mention in an earlier post that you may have an idea but didnt elaborate on it or follow through with what that idea might be, if you have any ideas please please let me know.

 

I had a bad experience with the Ombudsman many moons ago but I wrote to my MP who passed it to the Parliamentary Ombudsman but we did achieve what we wanted to do in the end but without further assistance.

[TINK660]

Hi Ibys,

 

Could you give me a little more info on your complaint?

 

THanks

 

Tink

[Ibsys]

Hi Ibys,

 

Could you give me a little more info on your complaint?

 

THanks

 

Tink

 

We had a mortgage with The Leeds BS (going back) and were 8 years ahead with it due to not reducing the repayments when the interest rate came down. The Leeds sent a form to "clarify" the amount we were paying and this was confirmed by the manager. We signed the form which gave the term left and the interest rate. But..if the interest rate changed, the details on the form would be then incorrect:- Either the term would change or the repayment. notwithstanding, our mortgage had 3 years left to run and not 11 which we would have had if we fluctuated the repayments with the interest rate.

 

The Ombudsman said the BS did nothing wrong. Our Solicitor, accountant, bank manager and about 5 other accounting professionals said differently. A barrister had said the form was "not legally binding as under contract law it did not duely protect both parties as it was not clear and concise and left too much to assumption"

 

The Ombudsman asked us if we needed to add anything before his decision and we did. The Leeds were given the same chance.

 

The Leeds entered more paperwork which we had not seen, the decision was handed down from the Ombudsman and we complained we had not been given chance to answer to it so we did answer to it.

 

We were told "case closed-decision final"

 

I wrote to my MP who passed this to the Parliamentary Ombudsman. What the Leeds were doing was blocking us from getting a remortgage on the open market. They wanted to lend us the money but at 20% and not the mortgage rate, then 11%. It was defamation.