Claiming on a Business account? Lets join forces?

[hsbcfiddled]

subscribing

[hsbcfiddled]

On speaking to someone from HSBC, Arlington Business Centre.

recently i was told that business claims could go ahead as they did not come under current OFT case conditions.

 

But be careful!

[hsbcfiddled]

Has anyone got the Business terms for HSBC from1995 to 2001 please?

[hsbcfiddled]

Thoughts please.

 

I have today received a rejection for my Claim of refund of Charges, refund 85% interest charged totalling £7.5K between 1998 and 2001.

Added to the claim was compounded interest of £23k.

I stated that I would argue clause s.32 being (Fraud, concealment and mistake) of the Limitations Act if the HSBC tried to hide behind Limitation Act 1980.

 

The only reason HSBC stated for not paying me was that 'HSBC had not concealed the charges from me' because 'they sent me letters and the charges were on my statements' to which I agree. However the concealment is the 'whole crux' of the case against the banking industry

in that they have not shown how they have calculated the figure that they have charged for the relevant charges. Therein the concealment.

I have written to HSBC and told them that I do not accept their view on the concealment issue.

Adding that the banks have paid out millions in ex gratia payments including £1.7k to me and that if they could justify these payments then no-one would have been refunded. Also the banks failure to defend the cost of the charge in court.

 

hsbcfiddled

[hsbcfiddled]

Hi BankloverNot,

 

Because it was the FSA that granted the waiver to which the banks seek the 'stay'. Then within the terms of the stay it states 'small business

are not covered by the waiver' See red text below.

 

FSA/PN/119/2007

21 November 2007

The Financial Services Authority (FSA) has completed its review of the 'waiver' of its complaints handling rules in the context of unauthorised overdraft charges. The waiver removes the obligation to deal with unauthorised overdraft charges complaints in the time specified under FSA rules. The FSA has concluded that the waiver is operating effectively and can remain in place.

The waiver was granted on 27 July 2007 to support the test case on unauthorised overdraft charges brought in the High Court by the Office of Fair Trading (OFT). The purpose of the test case is to bring certainty on whether these charges are fair and lawful. The waiver requires complaints to be put on hold until certainty is established and complaints about these charges can be dealt with consistently and fairly. The FSA pledged to review the waiver after two months.

Following detailed examinations of firms' compliance with the conditions of the waiver and extensive consultations with consumer groups and other stakeholders, the FSA has established that the waiver is meeting its four key requirements:

• An effective stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland is in place;
  
• The Financial Ombudsman Service (FOS) is likewise staying cases about unauthorised overdraft charges;
  
• Firms granted the waiver are complying with its conditions, including the need for clear communications with customers and appropriate handling of financial difficulty cases; and
  
• The continuation of the waiver remains appropriate to assist the test case.

Clive Briault, FSA Managing Director, Retail Markets, said:

"The test case between the OFT and the firms is a crucial step in establishing certainty about the legality and fairness of unauthorised overdraft charges. When this certainty has been established complaints about unauthorised overdraft charges can be dealt with consistently and fairly.

"The waiver we granted in July allowed firms to put complaints about unauthorised overdraft charges on hold until these complaints could be dealt with consistently and fairly. But it was important to review the operation of this waiver to ensure that it was working as intended. Our thorough review shows that it is appropriate for the waiver to remain in place.”

Particular concerns had been raised during the review period about the position under the waiver of complainants who may be in financial difficulty. The FSA is satisfied that the relevant part of the waiver is being complied with. However, in view of the importance of this issue, the FSA will carry out further work, in conjunction with the Banking Code Standards Board (BCSB), to check that firms continue to provide appropriate treatment of consumers in genuine financial difficulty.

The waiver review confirms that it remains appropriate for the waiver to continue to apply to consumers in Scotland and Northern Ireland.

The review has also clarified the status of small business accounts, which are not covered by the waiver. The FSA has agreed with the firms arrangements to ensure small business customers are not disadvantaged.

In the course of the review the FSA found that a number of firms had changed their terms and conditions in relation to unauthorised overdraft charges. In the waiver, each firm agreed 'it will not make materially adverse changes in the level of its unauthorised overdraft charges (or in ways that it applies such charges to its customers' accounts) which could amount to customer abuse'. The FSA will be closely monitoring how any change made by a firm will affect customers in practice and whether this amounts to a breach of the waiver.

The test case is expected to start in January 2008.

 

View it here;

FSA publishes review of 'waiver' on the handling of complaints in relation to unauthorised overdraft charges

 

Hope this enough...might need it myself.

hsbcfiddled

[hsbcfiddled]

I have notification that HSBC have informed DG to accept proceedings from me.

It is my intention to commence proceedings on Monday.

Can anyone forward a template for a business account - POC that is for a claim beyond six years please?

[hsbcfiddled]

Thanks Photoman,

 

I am going to go for Compounded interest at the Unauthorised overdraft rate of today being 28.2 %- any suggestions as to how this should be included please.

 

Also this is beyond six year claim- I have been paid for post six year on this account plus compounded interest at 14,8%.

 

Regards

Fiddled

[hsbcfiddled]

Jamesrap- Sole trader not LTD

 

GuidoT- Charges between !995 and 2001 totalling £7k plus and with compounded interest equals £70k plus.

 

Swines also took over £8k in interest at the same time.

 

Recently had £400+ charges and £100+ subsequent interest = total £500+ and Over £1k compounded interest post 2001 on same account.

I would argue that Compounded has been paid post 6 years therefore should apply pre 6 years????? Do you think?

[hsbcfiddled]

Hi Folks,

 

Thanks for all the replies, sorry I haven’t replied until now.

I have 5 children and last night I got mugged off the pc.

 

I will try to explain why I consider I am just in claiming £63k interest.

 

My threads are;

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78466-hsbcfiddled-hsbc-help-please.html

 

and

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/78205-hsbc-business-account-closed.html

 

There are other threads

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/77661-hi-advice-please-loan.html

 

However a short explanation:

 

Business account- details supplied from accountant- During the period 1994 – 2001 HSBC took £8700 (I have exact figures for last two years and I am estimating 15% would apply to previous years) in charges roughly 15% would be account fees therefore £7400 is unlawful figures.

 

During the same period HSBC took £6500 in bank interest, and £3500 in loan interest.

 

Ceased trading and working as self employed 2001- business account still open whilst I tried to pay off debts at £250 plus per month.

 

September 2003 business closed – received refund payment of £1600+ recently for period 2001 -2003.

 

Personal account- opened 2001 Charges to date £9000+

 

However as a result of Business account debt being carried into personal account I got put on a Managed Loan – paid £10k on it then CCA’ed them for agreement – no agreement so no more payments made- ML is a dodo!- But they still have had £10k.

 

To summarise-

If HSBC hadn’t taken £7400 in unlawful charges there wouldnt have been bank interest of £6500 and definitely not loan interest of £3500.

Then there is the £10k in ML payments.

That’s roughly £27k that doesn’t belong to them.

 

Then when they put me on the ML they took away our overdraft and credit card and my average of £28 in charges per month went up to £280 per month.

With 5 kids we had to go to other credit suppliers who charged exorbitant rates of interest and it has cost us thousands- estimate £10k.

 

Now if I had that £37k I could have invested more money into my company pension for when I retire.

 

Also who has had the use of my monies these last 12 years?

Who has made profits-massive profits with yours and MY MONEY?

 

Thoughts please?

 

Hsbcfiddled – fiddled I thought was more polite than hsbcshafted!

[hsbcfiddled]

PM.

 

Something you should really ought to look into and clarify at this point though, is the terms of agreement regards your last win.

Do check whether it was in "full and final settlement", and if so, what this actually encompassed. ie; was it just that particular claim, or was it with regards to all claims upon that account per se.

 

Oh dont you worry - the condition of acceptance was the 'peroid of claim 2001 May - Sept 2003'

I am a strong character and love a 'Good fight' so to speak - or whatever.

fiddled.

[hsbcfiddled]

wonder why no one asks for the interest they make off the charges?

 

 

Thats the whole point - it is your money that they made their massive profits with.

 

What if someone stole £10 from you and bought a lottery ticket with that money- then they win the lottery jackpot of £10,000,000.00 would you be happy when they gave you your £10 back?

 

fiddled

[hsbcfiddled]

PM...Going back to the POC you kindly posted for me could i try for the unauthorised overdraft interest rate at 9.9% above the bank of England base rate which i believe is 18.3% = 28.2%?

 

or CI at 14.8% APR as applied to me in a ML?

 

and leave it to the Court to decide?

 

fiddled

[hsbcfiddled]

I was told yesterday by a HSBC employee that the basic rate for an unauthorised overdraft on a business account was 18.3% and that a poorly managed or if consistent exceeding of an overdraft occurred then the rate could have up to 9.9% loading on to the 18.3% resulting in 28.2% interest applied.

 

Below is an extract that I have 'edited out' details of source.

 

 

Authorised overdraft interest rates

 

Over a third (35%) of those who said that they did know their authorised overdraft rate think they pay only 5% interest on their overdraft - cheaper than the most competitive personal loan rate on the market. A further 32% think they pay between 5-10%.

In reality analysis shows banks charge on average 12.35% for an authorised overdraft plus - but this was only cited by 12% of respondents - 1.7 million people - as the rate they think they are being charged.

Unauthorised overdraft interest rates

 

The study also revealed that many people are ill informed about the cost of going overdrawn without permission. ‘EDITED’ says that while the average unauthorised overdraft rate is a hefty 25.62%, some 11% (or 5.2 million people) believe that they are charged at 10% or less.

Unauthorised overdraft fees

 

Some 18 million people (41%) also admitted to being completely unaware of the charge their bank levies if they exceed their overdraft limit. One in seven of these (14%) had made a successful claim for a refund of charges against their bank yet still didn't know. A further 5.5 million people (13%) think they are being charged less than £20, but with the typical charge around £28 they are probably mistaken.

Makes interesting reading- Yes?

[hsbcfiddled]

Just found this;

sourced from a link via the British Bankers Association.

 

Full Account Details

 

HSBC

0845 740 4142

Account Name

Business Direct Account

 

 

 

 

Open To:

Sole Traders, Partnerships, Limited Companies,

Requirements:

Turnover under £500K

 

 

 

 

 

Account Name

Business Direct Account

 

 

 

 

Open To:

Sole Traders, Partnerships, Limited Companies,

Requirements:

Turnover under £500K

 

INTRODUCTORY OFFER

New businesses with a projected turnover under £500K receive 18 months' free banking. New businesses with a projected turnover between £500K and £1m receive 12 months' free banking. Businesses transferring from other banks with a turnover under £500K receive 18 months' free banking on accounts opened before 11.11.07

 

 

BORROWING

 

Authorised overdrafts:

 

%pm:

Negotiable

%EAR:

Negotiable

Arrangement fee:

Tiered r

Unauthorised overdrafts:

 

%pm: 2.09% pm% v

%EAR: 28.2%% v

Extra fee:

£8 per working day v

Unauthorised overdraft letter:

Free

[hsbcfiddled]

PM...Going back to the POC you kindly posted for me could i try for the unauthorised overdraft interest rate at 9.9% above the bank of England base rate which i believe is 18.3% = 28.2%?

 

or CI at 14.8% APR as applied to me in a ML?

 

and leave it to the Court to decide?

 

fiddled

 

 

bump

[hsbcfiddled]

Thanks photoman,

 

I have adjusted your POC and added to it.

 

 

Particulars of Claim:

 

1.The Claimant had a Business Bank account with HSBC (branch sort code xx-xx-xx) with the Defendant, between the periods of xx/xx/1994 and xx/xx/2003 which was governed by the Defendant’s Banking Terms and Conditions (the contract).

The relationship between the Claimant and Defendant is that of Customer and Banker.

This was held by the House of Lords in Foley v Hill (184 2HL Case 28 to be a relationship of contract).

The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

The Business account was held by the Claimant with the Defendant to be used primarily for the purposes of the Claimants Business banking activities, consequently any contract or account terms and conditions were never covered by or subject to the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR99) due to definitions as defined by paragraph 3. –(1){t2} of said regulations clearly excluding business accounts, ‘consume’ means any natural person who, in contracts covered by these regulations, is acting for purposes outside his trade, business or profession;

Thus the Claimant contends that;

i. The Defendant cannot make any reliance upon or reference to any other similar cases (whether past, current or pending) that were or are otherwise reliant upon UTCCR99 by way of any attempt or excuse to delay any compliance with any timetables set by the court.

ii. That as the present actions being taken by the Office of Fair Trade (OFT) (claim no: 2007 folio no: 1186) against the Defendant and similar institutions are clearly particularised as being solely in relation to the reasonableness of the Defendants contractual terms under UTCCR99, that such case should not be considered as to have any current or future bearing or relevance upon the conduct or outcome of this case.

Therefore under the overriding objectives of CPR1 the claimant respectfully pleads; that as the OFT’s current case is based upon wholly different particulars, it would be unjust for the court to declare any stay in proceedings if done so based upon awaiting the outcome of the OFT’s current case.

Similarly, the claimant respectfully requests that the court should also discount any applications for a stay by the Defendant if made upon similar grounds, and also that they should not be afforded any special considerations by the court if they attempt to delay or waiver their obligations in properly dealing with proceedings in a timely manner.

 

2. The Claimant admits to breaches of the terms of the contract that required the Claimant to stay within any agreed overdraft limit.

 

3. The Claimant’s breaches of contract have led to the Defendant debiting the account with numerous default charges, and interest on the default charges, between xx/xx/1994 and xx/xx/2003. A list of the charges and interest on the charges is annexed to the Particulars of Claim.

 

4. The Claimant seeks the refund of said charges along with the additional interest levied by Defendant on said charges.

In addition the Claimant claims Compounded interest on the full amounts as detailed in paragraphs 19 & 20.

 

5. In support of his basis of claim the Claimant contends that the charges are:

i. Excessive in that they are not truly reflective of any actual or genuine pre estimated loss incurred by the Defendant in respect of any alleged breaches of contract on the part of the Claimant.

If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses, or pre-estimate of costs in relation to the Claimant’s accounts breaches.

Since the Defendant has been invited to do so prior to the issue of court proceedings, and has failed to do so, the Claimant thus contends the Defendant’s charges to be indefensible, unenforceable at law, and unauthorised.

ii. Excessive in that the Defendant is being at minimum fairly and amply compensated otherwise for unauthorised lending by the imposition of unauthorised overdraft interest rates.

iii. Devised and enforced by the Defendant with a view to profit in that they do not truly represent any alleged actual loss in respect of any alleged breaches of contract on the part of the Claimant, but instead unduly enrich the Defendant which conducts its regime of charging with a view to profit.

iv. Punitive in nature in that they are used in "in terrorem" to discourage the Claimant from presenting items on the account for payment where there are insufficient funds to cover such payment of said item, thus can be deemed as penalties, which are unenforceable under common and/or statutory law.

 

Accordingly the Defendant’s default charges are a penalty and therefore unenforceable as they are an unreasonable pre-estimate of the probable loss to the Defendant and therefore contrary to common law.

In the event that the court finds that the charges are not a penalty they are unreasonable within the meaning of section 15 of the Supply of Goods and Services Act 1982.

 

6. The Defendant has declined to answer the Claimant’s written requests for information about any manual intervention necessitated by, and/or any actual administrative costs incurred as a result of, the said breaches.

 

7. The Claimant contends that the Defendant failed to conduct itself in a manner befitting such a position of great trust.

The Defendant had a duty of care to safeguard all money entrusted to it by the Claimant, yet it repeatedly has taken sums and regardless of several requests has still failed to lawfully justify.

This amounts to a failure of the Defendants fundamental duties of trustworthiness, transparency, diligence and care.

 

8. The Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

 

a. Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co. [AC 79];

b. Lordsvale Finance PLC v. Bank o/Zambia [QB 752];

c. Murray v. Leisureplay [EWCA Civ 963 ]

d. Nurdin & Peacock v D B Ramsden [1999] 1 W.L.R. 1249)

e. Lord Elphinstone v. Monkland Iron and Coal (1886)

f. Clydebank Engineering and Shipbuilding co v. Ramos Yzquierdo y Casteneda (1905)[AC6]

 

9. The claimant draws attention to a report from the Competition Commission entitled “Northern Irish Personal Banking,” published on 20/10/2006. The Claimant contends that it is not unreasonable to draw close comparisons between the functions and practices of Northern Irish and mainland UK Banks. This is thus reasonable evidence that the defendant is aware that the income derived from its default charges is;

(a) Excessive,

(b) Do not truly reflect the actual costs incurred in dealing with such breaches, and

© Unduly enriches the Defendant.

 

10. The Claimant further draws attention to the statement by the Office of Fair Trading (OFT) concerning default charges in credit card contracts, published on 5/4/2006, to demonstrate that:

 

a. The OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank account agreements.

b. In a contract, where the parties are not of equal bargaining power, any estimate that included costs which could not legitimately be claimed as damages from an individual in a case brought at common law, and which made a material difference to the overall charge, is likely to constitute a penalty at law.

c. The interest ordinarily charged on an overdrawn balance of account would of itself be deemed sufficient compensation to the defendant in a claim for damages arising from account breaches of the said nature.

 

11. The Claimant seeks permission to proceed with the claim under section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimants right of action, before the report of the OFT was published on 5/4/2006.

Section 32(1) (b) of the 1980 Act postpones the commencement of the limitation period where;

b). "Any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges.

Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.

 

12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)© of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties. The Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

Section 32(1)© of the 1980 Act postpones the commencement of the limitation period where;

c). "The action is for relief from the consequences of a mistake"

The claimant cites inter alia Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter.

 

13. In respect of paragraphs 11 and 12 section 32 of the Statute of Limitations act (1980) stipulates that:

"the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".

 

14. In regards to paragraphs 11 & 12 the Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

i. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349

ii. Deutsche Morgan Grenfell V Inland Revenue (2003) EWHC 1779 (ch)

iii. Cave v Robinson Jarvis (House Of Lords) [2002] UKHL 18

 

 

15. In regards to paragraphs 11, 12, 13, & 14 the classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking.

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

In the present proceedings the Claimant submitted a demand for payment on 2nd January 2008.

The Claimant sent a letter to the Defendant asking for a refund of the Charges and Debtor Interest then outstanding on the Account.

It follows on from the settled law that the Limitation Act will bite on the Claimant on 2nd January 2014.

 

16. Further evidence supporting the claimant can be found in the Defendants letter to the claimant of 16th January 2008 in which the reasons the defendant rejects the claimants claim are ‘that the defendant has not concealed the charges’.

In the Defendants letter of the 2nd January 2008 to the claimant the defendant advances the submission that the Claimant was aware of the charges and their nature by way of the entries on periodic bank statements.

In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, [1985] 2 All ER 947 PC the Privy Council held that there is no duty on a bank’s customer to check his statements cited at paragraph 11.5 of Paget's Law of Banking.

The Defendant cannot therefore rely on a statement entry to start time running for the purposes of the Limitation Act.

 

17. The Defendant wrote to the Claimant on 14th December 2007 offering to settle the amount claimed in respect of Charges of £402 for the period of July 2001 to November 2001 and £136 in respect of subsequent interest for the period of November 2001 to September 2003 totalling £543 plus £1155 added compounded interest at 14.8% Apr (as has been applied to the claimant by the defendant in Managed loan agreements that contained these charges) totalling £1693. The Claimant accepted the £1693 as settlement for the period of the claims between July 2001 and September 2003 only.

The Defendant therefore unilaterally advanced the sum of £1693 by way of cheque to the claimant without the need for court proceedings.

The Claimant accepted these sums as payment for the period of that claim only.

Consequently on the basis of the term “…or makes any payment…”

Therefore the Claimant has accrued fresh rights under section 29(5) (a) of the Limitation Act 1980 (See below) running from 14th December 2007. (5) Subject to subsection (6) below, where any right of action has accrued to recover--

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

 

18. The defendant by offering payment on 14th December 2007 of refund of charges & subsequent interest between July 2001 and November 2001 has already acquiesced a payment beyond the Statute of Limitations Act 1980.

The payment of £1693 in December 2007 by the defendant to the claimant for charges accrued in July 2001 some 6 years and 5 months earlier.

This would exceed the Statute of Limitations Act 1980 by some 5 months and itself is evidence of the defendant agreeing to overide the Limitations Act1980.

 

19. Accordingly, the Claimant claims:

a). The return of £xxxx.xx taken by the Defendant in charges and interest of £xxx.xx applied on the charges between the period xx/xx/xxxx and xx/xx/xxxx.

b). All court fees and expenses.

c). Plus Compounded interest at 14.8% as has been acquiesced to the claimant by the defendant, which was acceptable as to the defendant by way of the recent payment beyond 6 year Limitations Act 1980.

 

20. In regards to paragraph 18 the claimant refers to HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) [2007] UKHL 34 whereby Sempra Metals Ltd v Inland Revenue where an award of compound interest was necessary to achieve full restitution and, hence, a just result.

Lord Nicholls held that, in the exercise of its common-law restitution jurisdiction, the court had power to make such an award.

 

a). and or plus Statutory interest at 8% per year as prescribed by law under s.69 of the County Courts Act 1984 upon all sums claimed from the date of the first charge until the date of judgement.

 

 

I believe that the contents of these particulars of claim are true.


 

Signed:

 

 

Comments or additions please?

[hsbcfiddled]

PM thanks for the reply.

 

Re; Para 16

 

The point i am trying to make is- HSBC have already paid me a refund of charges on this business account. The initial claim was from July 2001 to Sept 2001 on charges alone.

 

I then made a second claim along similar lines for the tax years 1998 -2001 inclusive. I pointed out to them that if they objected to the claim under the limitations act 1980 that i would argue 'mistake and concealment' using sec32 of limitations act.

 

Hsbc wrote back to me;

I note your comments regarding the provisions of the Limitaion Act 1980 but I do not agree with them.The bank has never attempted to conceal the charges applied to your account which have always been clearly recorded, notice of which you wiill have received by letter or specific detail on your statements. For this reason, I do not consider that there has been a concealment, deliberate or otherwise, on the part of the bank.

You have submitted a further schedule with your letter representing transactions being unpaid items for the period 1998-2001 inc.

This claim is rejected , for the reasons stated above, and please be guided accordingly.

 

I wrote back stating that the concealment was the 'whole crux' of the refund cases. The concealment being that the charges have not been justified, or accountable as to the actual cost of the bank granting/refusing the payment transaction that we have been charged for.

 

If the only reason that the claim is rejected was 'no concealment' then there is no case for the bank to refuse going beyond six years because the concealment has been proved by their earlier offer of payment which incidently goes back beyond the Limitation Act 1980 that they are trying to hide behind.

 

 

Does this make sense?

 

I think I know what i want to say/argue but I am not that good at placing it in the correct sequence.

 

fiddled

[hsbcfiddled]

Thanks PM & Steven for your responses.

 

PM asks - Does it makes sense? Im struggling sorry.

 

I dont have any letters i am afraid- but then dont ever remember any being sent.

 

Charges appear on statements as -

Charge Unpaid Item

Charge recall S/O - D/D

 

 

You are quite right it does say 'Without Prejudice'

 

However i do have another letter dated 03/01/2008 from another branch of HSBC stating- We have recieved a payment of £1693 from HSBC- refund of charges paid into your account number XXXXXXX.

We enclose cheque for £1693 which we are unaable to apply as the account XXXXX is closed.

 

This letter does not state 'Without prejudice' and is evidence of refund of charges from the account over the 6 year limitation.--Is this any use?

[hsbcfiddled]

Hello,

 

Sorry if this seems like a silly question, but here goes.

 

I had a sole trader style business. it ran into difficulties. bank charged it lots of money. hit overdraft limit. bank closed ac and applied full (negative) balance to my personal account (i was on benefits at time following collapse of business). visit to bank converted this into an MLA (managed loan account) which seemed a good idea at the time as it meant i would be able to eat sometime soon. MLA obviously generates more interest for bank. MLA still exists.

 

I reclaimed charges successfully for my personal account in summer last year. I am now trying for the business amount. The charges I have identified add up to just under £1k, taking no account of interest. without realising the difference in required methods i blithely followed the standard moneysavingexpert method which worked so well for my personal account. i got as far as the letter with spready demanding payment.

 

I now have a letter back offering me a goodwill payment in the order of £250 with no admission yadda yada, but only if i accept within now the next 3 weeks or so. I'm currently quite broke and anything would be nice; after rebuilding my life i was made redundant and the spiral has been turning for the last few months.

 

the meat of the bank letter is:

 

"in the circumstances where a payment was requested by you that would, if met by us, lead to the account going overdrawn or over an agreed overdraft limit, we have to take time to consider whether or not to make this payment. if we agree to the payment then a daily fee is payable for this service for every day that you remain overdrawn or over your formally requested overdraft limit; if we do not, then a charge for returning the item may be applied. details of these charges are set out in our published Price List and the circumstances in which they will apply are also outlined in our Business Banking Terms and Conditions, both of which were provided to you either when you opened your account or as part of our periodic mailings. if your request for a refund proceeded to Court, we therefore believe that we would successfully resist any legal challenge brought against us in relation to these fees."

 

so, after that long background, my question is this: Should I hang tough and hold out for the full amount? Should I apply interest? Should I have taken any account of the MLA? The bank in question is HSBC.

 

Any advice greatfully appreciated!

 

 

Do not accept their offer -unless you are desperate.

Tell them that you are applying interest at the same rate that has been applied to you on the ML that consisted unlawful charges.

PM me your email address -details of when charges commenced -and the % on the ML and I will send you a spreadsheet.

[hsbcfiddled]

I am too slow this is a response to post 994.

 

If they previously paid it, it will be on a without prejudice, gesture of goodwill, on the basis of proportionality and all that palaver and therefore cannot be used as a basis for reclaiming forwards.

 

I would strongly advise against a claim comprising of £63K of interest.

 

Do you have a thread on this claim?

 

Case closed - agreement reached

[hsbcfiddled]

Re: lancasterchelsea v. HSBC 1996 to 2000/business

I've gone through all the stages since last summer...........

dropped MCOL

switched to local court new N1 etc etc

today was told my business claim has been stayed !!!!!!

same as my lloyds business claim

ominously....

if I appeal (I have on my Lloyds claim) the fee is £75

and I have just been told if it gets to court....there is a hearing fee

of £300

In other words they are pricing claims out of the SMALL claims court

 

 

Try sending this to the banks Solicitors and the Court and let both parties know that you have sent it them both.

 

 

 

FSA publishes review of 'waiver' on the handling of complaints in relation to unauthorised overdraft charges

 

 

FSA/PN/119/2007

21 November 2007

The Financial Services Authority (FSA) has completed its review of the 'waiver' of its complaints handling rules in the context of unauthorised overdraft charges. The waiver removes the obligation to deal with unauthorised overdraft charges complaints in the time specified under FSA rules. The FSA has concluded that the waiver is operating effectively and can remain in place.

The waiver was granted on 27 July 2007 to support the test case on unauthorised overdraft charges brought in the High Court by the Office of Fair Trading (OFT). The purpose of the test case is to bring certainty on whether these charges are fair and lawful. The waiver requires complaints to be put on hold until certainty is established and complaints about these charges can be dealt with consistently and fairly. The FSA pledged to review the waiver after two months.

Following detailed examinations of firms' compliance with the conditions of the waiver and extensive consultations with consumer groups and other stakeholders, the FSA has established that the waiver is meeting its four key requirements:

· An effective stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland is in place;

· The Financial Ombudsman Service (FOS) is likewise staying cases about unauthorised overdraft charges;

· Firms granted the waiver are complying with its conditions, including the need for clear communications with customers and appropriate handling of financial difficulty cases; and

· The continuation of the waiver remains appropriate to assist the test case.

Clive Briault, FSA Managing Director, Retail Markets, said:

"The test case between the OFT and the firms is a crucial step in establishing certainty about the legality and fairness of unauthorised overdraft charges. When this certainty has been established complaints about unauthorised overdraft charges can be dealt with consistently and fairly.

"The waiver we granted in July allowed firms to put complaints about unauthorised overdraft charges on hold until these complaints could be dealt with consistently and fairly. But it was important to review the operation of this waiver to ensure that it was working as intended. Our thorough review shows that it is appropriate for the waiver to remain in place.”

Particular concerns had been raised during the review period about the position under the waiver of complainants who may be in financial difficulty. The FSA is satisfied that the relevant part of the waiver is being complied with. However, in view of the importance of this issue, the FSA will carry out further work, in conjunction with the Banking Code Standards Board (BCSB), to check that firms continue to provide appropriate treatment of consumers in genuine financial difficulty.

The waiver review confirms that it remains appropriate for the waiver to continue to apply to consumers in Scotland and Northern Ireland.

The review has also clarified the status of small business accounts, which are not covered by the waiver. The FSA has agreed with the firms arrangements to ensure small business customers are not disadvantaged.

In the course of the review the FSA found that a number of firms had changed their terms and conditions in relation to unauthorised overdraft charges. In the waiver, each firm agreed 'it will not make materially adverse changes in the level of its unauthorised overdraft charges (or in ways that it applies such charges to its customers' accounts) which could amount to customer abuse'. The FSA will be closely monitoring how any change made by a firm will affect customers in practice and whether this amounts to a breach of the waiver.

The test case is expected to start in January 2008.

I think that clarifies the situation.

[hsbcfiddled]

thanks fiddled I have pmed you

I'll try the letter it looks good

but it will cost £75 (need form ???)

and it still might not get stay lifted

I don't mind spending the dosh, if I knew my chances were high

 

I would have thought that the Court should refund as they were no grounds for a stay anyway.

[hsbcfiddled]

Hi lancasterchelsea,

 

Thanks for posting that up. That's a great letter. Do we know if that letter had the desired effect or not?

 

TheyrCriminals

 

Yes.

 

The banks solicitors are fully aware that the stay doesnt apply to business accounts- and if they arent aware, they shouldnt be in their job.

Its just stalling tactics.

[hsbcfiddled]

Hi hsbcfiddled,

 

Thanks for your reply. Do we know however if this letter got the stay lifted or prompted the bank into settling?

 

TheyrCriminals

 

I assumed that they would try to get a stay - so i sent the letter before i proceeded to court.

Never even had to start the proceedings. they folded. (poker term)

[hsbcfiddled]

hi hsbcfiddled,

 

Thanks for you reply and thanks for defining the term 'they folded' - but no need it's one of my most favourite terms to hear especially when discussing banks!

 

That's a great result you had there and a real tribute to the strength of your letter - welldone. However my stay lift hearing is the 6th March. I just wish I had seen your letter sooner!!Grrr! Do you think it is too late now to type up anything along the lines that you did in that letter?

 

Thanks.

 

TheyrCriminals

 

I think I would be inclined to get the letter from the FSA down to the Court ASAP and let them reasearch the website themselves before your hearing. I would also email DG the letter aswell- although they have seen it before when i sent it them.

 

fiddled