Jump to content


Claiming on a Business account? Lets join forces?


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3169 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

I still am not sue what it is you are claiming

Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

Link to post
Share on other sites

  • Replies 1.8k
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Hi can anyone help with advice???

I had a limited company account which is closed. I claimed interest on that account and RBS sent me a cheque for the full amount in the name of the company. I phoned to ask if they could redo the cheque in my own name as I issued the court proceedings for this account in my own name.

They said they would do this if I sent the cheque back which i did. They have since written to say they would not be sending any cheque as the account is now closed!!! So I had a cheque for the full amount in the company,s name and now I have nothing!!! What do I do ????

Please Help

 

Please do not post your question more on more than one thread.

 

You should post your questions on your own thread, if you do not have one you should start one.

If I have been helpful please click on my star and add a comment.

Link to post
Share on other sites

sorry was not sure if Limited Company claims thread was still active.
The only cliams that should be sted arethose relating topersonal current accounts. The test case has no relevance whatsoever to business account claims so you can press ahead with those.

Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

Link to post
Share on other sites

Hi Guys,

 

I have two friends (boyfriend and girlfriend) and they have been attempting to reclaim charges on a business account (Limited company which is now dissolved). They sent their LBA a few days ago and got a phone call today from their bank manager! He told them that they wont get a penny as it will all go to the Government!!!!!

I know company business bank accounts work differently but if my friends were the only directors and they paid everything off on their account before the company was dissolved who does the refund go to? Surely the bank wouldnt make a cheque payable to a comp[any that was dissolved and hope the Directors go away. Or is in actual fact this the law and the bank can do this?

 

Any help really appreciated on this!

 

Thanks Guys

 

BankLover_not

Link to post
Share on other sites

Hi Guys,

 

I have two friends (boyfriend and girlfriend) and they have been attempting to reclaim charges on a business account (Limited company which is now dissolved). They sent their LBA a few days ago and got a phone call today from their bank manager! He told them that they wont get a penny as it will all go to the Government!!!!!

I know company business bank accounts work differently but if my friends were the only directors and they paid everything off on their account before the company was dissolved who does the refund go to? Surely the bank wouldnt make a cheque payable to a comp[any that was dissolved and hope the Directors go away. Or is in actual fact this the law and the bank can do this?

 

Any help really appreciated on this!

 

Thanks Guys

 

BankLover_not

 

I emphasise again the problem with Limited Companies where the companies have been dissolved. A company is like a human being - it's born - it dies, when it's dead it's dead.

 

The only way that you can justify any charges reclaimed is if the company had an overdraft which was paid off by the Directors and can be proved to have come from personal finance. You mention that your friends 'paid everything off' - did that include an overdraft facility?

 

I personally believe that the crux of claiming on these accounts is proving that their own finance, financed the company's bank charges if that makes sense. Once that is then in place it will depend on how good your friends are at presenting that argument to the bank.

 

Generally speaking the bank is right, it goes to the govt - just like everything else these days, but if they prove their personal financing they may have a chance. It really depends on exactly how the company was wound down and dissolved.

Hope that helps.

 

 

Sarah

Link to post
Share on other sites

Hi Sarah,

 

Many thanks for your help, that is all very helpful. They have told me that the business is still continuing but not as a company as a partnership instead. Does this make things even worse or more complicated?

 

Thanks.

 

BankLover_not

Link to post
Share on other sites

It depends what is meant by 'dissolved'.

 

If the company was voluntarily and formally dissolved by application to Companies House and consequently struck off the register, then it has ceased to exist. The bank accounts would have been closed and so there would be no means whereby a cheque in the name of the defunct company could be banked and cashed. In these circumstances the bank would be correct to assert that any money due, as with other assets, would be the property of the Crown.

 

If the company has merely ceased trading, a formal dissolution has not actually taken place and the company bank account remains open, then there is no problem. This is an unlikely scenario, but possible if the events are recent.

 

If, however, the company was wound up by an insolvency practitioner on behalf of creditors, the company may well still exist and the bank accounts remain open, to deal with residual receipts and payments to creditors. This though presents the problem that any money due to the company in respect of returned bank charges would go to the company, to be distributed to the creditors by the IP.

 

There is a lot of useful information on Companies House website

 

http://www.companieshouse.gov.uk/about/gbhtml/gbw2.shtml

 

Els

  • Haha 1

BANK CHARGES CAMPAIGN CONTINUES - PLEASE SIGN THIS PETITION

 

Aktiv Kapital £300.00 SETTLED IN FULL

Capital One £741.47 SETTLED IN FULL

Citi Cards £1221.00 SETTLED IN FULL

LTSB(personal) £3854.28 SETTLED IN FULL

LTSB(business) £7487.97 SETTLED IN FULL

 

What poor education I have received has been gained in the University of Life

Link to post
Share on other sites

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

Link to post
Share on other sites

-----

"The only thing that interferes with my learning is my education." Albert Einstein

 

"No-one can make you feel inferior without your consent" - E. Roosevelt

 

 

Don't lie, thieve, cheat or steal. The Government do not like the competition.

 

 

All advice is offered without prejudice.

We are being sued for Libel. Please help us by donating

 

Please support the pettition to remove Gordon Brown as he was not elected primeinister. He was elected Party Leader something completely different.

 

http://petitions.pm.gov.uk/gordan-brown/

Link to post
Share on other sites

It is not really necessary to produce a reply on the small claims track.

 

Unfortunately I do not have a reply that relates to business, but here are some words for a consumer claim that you may want to use as a starting point. These are not my words:

 

I am a litigant in person. I make this reply to the defence as a response to the banks defence and the also the banks application to have part of this claim dismissed. I make this response from matters within my own knowledge.

It is acknowledged that the defendant denies that the punitive charges were debited unlawfully however it should be noted that the defendant has settled many hundreds of claims without once defending any in a court hearing, this is a clear and systematic abuse of the court system.

I base my claim for Contractual Interest being awarded due to the imbalance in favour of the defendant in applying compounded contractual interest to the penalty charges and the borrowing of my money and no fairness in this being reciprocated by Claimant in their use of my money or any legal redress by the Claimant. This therefore being deemed an unfair term in the contract.

Insofar as it is possible and material to this case the Claimant pleads and maintains as follows with regard to the Defence and this Claim.

1. At several points in the Defence the Defendant avers that the Claimant must plead further than he already has in the Particulars of Claim (‘PoC.’) The Defendant calls upon the Claimant to plead information (and in some cases evidence) which the Claimant is not required to plead at this point

1.1 For the avoidance of all and any doubt, it is specifically denied that the Claimant needs to plead further than he already has in this case.

1.2 The Defendant makes several averments in the Defence reserving its “right” to plead further in this case.

1.2.1 It is denied that the Defendant has such a right to plead further in this case, as alleged or at all.

1.2.2 Nothing in this Reply or the PoC should be construed as giving the Defendant the right to plead further at a later date.

1.2.3 Nothing in this Reply or the PoC should be construed as derogating from the provisions of CPR 15.9, or giving the Defendant the right to do so.

 

2. In the defence at paragraph 2 the Claimant refer to being able to bring a claim more than 6 years after the date on which the cause of action accrued.

 

2.1 I feel if your client had disclosed their true costs to me, this would have ended any dispute. However although your client has had every opportunity to do so, they have failed to avail themselves in this matter. I am also prepared to argue and show the court that the Limitation Act 1980 restriction does not apply under the specific exemptions in Section 32(1).a, b, and c and therefore my claim is not time barred under s5. I am fully prepared to prove to the court that your client’s charges are punitive in nature, excessive, unfair, not a true reflection of actual costs. And therefore show the court that my claim is not time barred due to your client concealing and or fraudulently concealing and or making a misrepresentation and or making a fraudulent misrepresentation. The Claimant avers that Section 5 of the Limitations Act is not relevant in respect of this claim.

3.1 The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large number of staff, including experienced corporate lawyers and accountants.

3.1.2 As a company regulated under the Financial Services Authority (“the FSA”), the Defendant has agreed to abide by the Principles for Businesses, as outlined in Chapter 2 of the FSA Handbook:

1. Integrity - A firm must conduct its business with integrity.

 

2. Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

 

3. Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

 

4. Financial Market Conduct - A firm must maintain adequate financial resources.

 

5. Market Conduct - A firm must observe proper standards of market conduct.

 

6. Customers’ interests - A firm must pay due regard to the interests of its customers and treat them fairly.

7. Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

8. Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

9. Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

10. Clients' assets - A firm must arrange adequate protection for clients' assets when it is responsible for them.

11. Relations with regulators - A firm must deal with its regulators in an open and cooperative way, and must disclose to the FSA appropriately anything relating to the firm of which the FSA would reasonably expect notice.

3.1.3 This document is produced under the powers given to the FSA within the Financial Services and Markets Act 2000, and provides a benchmark by which financial companies should operate within the United Kingdom. Paragraph 9, places a duty on companies to “take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment”. The Claimant contends that a bank’s fiduciary responsibility is encapsulated in law, and therefore if such a regulated company informs a customer that it is entitled to levy a charge against an account, it would be reasonable to expect the account holder to believe that the actions of the bank are lawful, and that the charge does relate to it’s internal costs, as they continue to contend is the case.

 

3.1.4 In addition and without prejudice to the above, as a Litigant in Person, the Claimant could not reasonably have discovered that the making of such payments was a mistake before the report of the Office of Fair Trading (“the OFT”) was published on 5th April, 2006, and the up swell of public information regarding unlawful bank charges during 2006.

3.1.5 It is worth noting that the Defendant and its peers will not allow the issues involved in these claims to be judged on merit in court, which would resolve the issue of the lawfulness (or otherwise) of banks’ penalty charges.

3.1.6 In support of this, the Claimant will also rely on Kleinwort Benson Ltd v Lincoln City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Southwark and Others; Kleinwort Benson Ltd -v- Birmingham City Council; Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Kensington And Chelsea And Others [1998] UKHL 38; [1999] 2 AC 349; [1998] 4 All ER 513; [1998] 3 WLR 1095; & Deutsche Morgan Grenfell Group Plc (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)[2006] UKHL 49 (on appeal from [2005] EWCA Civ 78).

4. Regarding the reference to the doctrine of laches in Paragraph 2 of the Defence. Again, it is submitted that, given the reputation of National Westminster Bank and their duties as outlined by the FSA above, after being made aware of the possibility of challenging these charges, the Claimant took the following actions:

 

4.1 The Claimant made a Subject Access Request (“S.A.R - (Subject Access Request)”) under s7(1) of the Data Protection Act 1998 (“Data Protection Act”) to the Defendant on 14th November 2006 to obtain bank statements for this account.

 

4.2 A preliminary refund request was sent to the Defendant on 2nd December 2006. This request gave the Defendant 10 working days to reply, which it decided not to do so.

 

4.3 As the reply had not been received, despite the Claimant giving ample opportunity and more time to take into account the festive season, a Letter Before Action was sent to the Defendant on 5th January 2006. This letter gave the Defendant a further 14 working days to settle the amount in dispute before court action would commence.

4.4 The Defendant did not make a timely reply to the Claimant’s letter of 5th January 2007, and thus the claim was prepared and taken to Luton County Court on 25th January for issue on 27th January 2007.

4.5 On 6th February 2007 in a reply to the letter dated 4th December 2007 (some 2 months later), the Defendant made a conditional settlement offer which did not satisfy the Claimant’s requests in full.

4.6 In a letter of 13th February2007, the Claimant advised the Defendant that the conditional settlement offer of 6th February 2007 did not meet the Claimant’s requests in full, but would be accepted in partial settlement without any conditions.

 

4.7 Further to the above, it is submitted that the doctrine of laches cannot be applied as the Claimant has not unreasonably delayed in asserting his equitable right.

5. Paragraph 3 of the Defence - it is the Claimant’s case that the Claim is properly particularised in the first instance and fully discloses grounds for bringing a claim against the Defendant.

6. Paragraph 4 of the Defence - if no admission is made of the charges that have been debited to the account, does the Defendant require further proof? Submitted with the PoC, at Appendix 1, was a full schedule of charges & interest paid, complete with 66 pages of statements showing the application of each and every charge and interest deduction. Since the Defendant supplied the statements and the data contained therein it is contended that no further evidence in support of the application of the charges is required.

7. Paragraph 5 of the Defence is denied in its entirety, and it is denied that the Claimant must identify the Contractual provisions which are Penalty clauses.

 

8.Paragraphs 6.1 & 6.2 of the Defence – the Defendant’s case in relation to the Unfair Contract Terms Act 1977 (UCTA) are denied in their entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub paragraphs below.

8.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UCTA.

8.2 The Defendant’s interpretation of s4 UCTA contained within paragraph 6.2 of the Defence, is specifically denied.

9. Paragraph 6.3 of the Defence – the Defendant’s case in relation to the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc. that appear in the sub-paragraphs below:

 

9.1 It is denied that the Claimant must identify the Contractual provisions which are invalid under the UTCCR.

9.2 Paragraph 6.3.1 of the Defence is admitted, insofar as it quotes the title of Schedule 2 to the UCTCCR. The Claimant contends that the emphasis of “may” by the Defendant is irrelevant. By virtue of the fact that Schedule 2 is a “non-exhaustive” list, it is implied that any clause can be deemed to be unfair, providing it meets the criteria of any item contained within Schedule 2.

9.3 Paragraph 6.3.2 of the Defence – the Defendant’s contention that the Claimant is required to plead further - is denied in its entirety. Evidence is not required to be pled in a PoC. In any event, the Claimant has given an indication of the factors and evidence which he intends to rely upon in the PoC.

9.4 Paragraph 6.3.3 of the Defence – the Defendant’s contention that the PoC disclose no reasonable grounds for a claim under the UTCCR - is denied in its entirety.

 

9.5 Paragraph 6.3.4 of the Defence is denied in its entirety.

9.6 Paragraph 6.3.5 of the Defence – the Defendant’s contention that the UTCCR have no application - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the sub-paragraphs below.

 

9.6.1 If the Defendant wishes to contend that the Charges are consideration for services rendered, then it is required to plead and prove the nature of the service provided.

 

9.6.2 In any event, even if the Charges are consideration for a service it is the Claimant’s contention that the UTCCR still apply, as detailed in the PoC.

 

10 Paragraph 6.4 of the Defence – the Defendant’s case in relation to the Supply of Goods and Services Act 1982 (“the SGSA”) - is denied in its entirety, subject to the additions, deletions, replacements, amendments, clarifications, etc that appear in the subparagraphs below.

10.1 Denied that at this time the Claimant is required to plead further than he already has.

10.2 In response to paragraph 6.4.4 (c ) The Claimant is not in a position to determine what level the penalty charges should be. The Defendant can only levy a charge which is a genuine pre-estimate of its liquidated losses or the actual liquidated losses. It is therefore denied that the Claimant can suggest an appropriate fee. However, when determining the liquidated losses it would be reasonable to take account of the fact that the charges are applied automatically to the Claimants accounts; the charges are applied by way of systems put in place to manage the whole of the account along with those of the millions of other accounts operated by the Defendant.

10.2 Paragraphs 6.4.3, 6.4.4, 6.4.5 of the Defence are specifically denied.

11. The PoC outlines three interest rates that the Claimant will take the Court's direction on which rate should be applied – these are 29.50% compounded (unauthorised borrowing rate), 16.99% compounded (authorised borrowing rate) and 8% simple interest as allowed by s.69 County Courts Act 1984.

 

11.1 It is further submitted that Paragraph 7 of the Defence does not comply with CPR 16.5(2).

11.2 In relation to entitlement to interest, the Defendant charges interest to the Claimant, via the Account, at its published “unarranged overdraft rate” of 29.50%. The Defendant claims that it is entitled to charge this rate by virtue of the Terms & Conditions.

 

11.2.1 In maintaining the principal of fairness and balance, the Claimant has at no time disputed the interest charged by the Defendant, either unauthorised or authorised, nor has the Claimant attempted to seek any restitution on the interest charged.

 

11.3 The unarranged overdraft rate was charged to the Claimant, via the Account, when the Claimant drew money from the Account whilst he had not obtained prior permission from the Defendant for exceeding any overdraft limit that he had. It is in effect, a rate that the Defendant charged the Claimant when he drew funds from the Defendant when he had no right for doing so.

11.4 Using the reasoning as outlined in 11.3 and maintaining the principal of equity, mutuality and reciprocity and fairness and balance between the parties, the Claimant contends that he is entitled to an equal rate of interest in this case. The Claimant notes in particular that the Defendant erred in law, had no legal right to levy the charges to the Account and refused to refund the Charges when asked to do so by the Claimant.

11.4.1In addition the Defendant has had the enjoyment of this money to use as they so wished. It is averred that the Defendant has been able to re-lend the money unlawfully taken at the rates set out in the contract including the rate for unauthorised overdraft.

11.5 If the Terms and Conditions form part of contract between the parties hereto then there is an implied and/or imposed term of contract that the Defendant must pay the Claimant at the same rate of interest which it reserves for itself in similar circumstances.

 

11.6 Without prejudice to 11.5, if no express contract exists between the parties hereto then the Claimant contends that an implied and/or imposed contract exists between the parties hereto relating solely to the Claimant’s right to charge interest to the Defendant at the rate which it reserves for itself in relation to similar circumstances.

If I have been helpful please click on my star and add a comment.

Link to post
Share on other sites

Anybody seen this ?

 

Barclays chairman loses £10,000 in identity [problem] - Times Online

 

 

...... I wonder if the withdrawals cause his account to go overdrawn..... thus incurring penalty charges ? :p

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

Link to post
Share on other sites

Hello Again Guys,

 

Andrew1 did you manage to find out about reclaiming charges on a business account which was a company but now dissolved although the business continues to trade, exactly the same trade, just in a different legal entity?

 

Sarah, I spoke to Tom and Sarah again and they said they did not have an overdraft but paid in a lot of their own personal finance to cover the cost of charges and other banking activites. Would this still be a route to reclaiming these charges?

 

Many Thanks.

 

BankLover_not

Link to post
Share on other sites

Just to say that LTSB have agreed to close our ex limited company account which was about £1600 overdrawn. The company has been dissolved anyway but we had been paying in small amounts to bring the overdraft down to the amount of unlawful charges they owed us. I sent them a letter a few weeks ago saying 'OK now we are quits' and they have agreed to it.

BANK CHARGES

Nat West Bus Acct £1750 reclaim - WON

 

LTSB Bus Acct £1650 charges w/o against o/s balance - WON

 

Halifax Pers Acct £1650 charges taken from benefits - WON

 

Others

 

GE Money sec loan - £1900 in charges - settlement agreed

GE Money sec loan - ERC of £2.5K valid for 15 years - on standby

FirstPlus - missold PPI of £20K for friends - WON

Link to post
Share on other sites

congrats

"The only thing that interferes with my learning is my education." Albert Einstein

 

"No-one can make you feel inferior without your consent" - E. Roosevelt

 

 

Don't lie, thieve, cheat or steal. The Government do not like the competition.

 

 

All advice is offered without prejudice.

We are being sued for Libel. Please help us by donating

 

Please support the pettition to remove Gordon Brown as he was not elected primeinister. He was elected Party Leader something completely different.

 

http://petitions.pm.gov.uk/gordan-brown/

Link to post
Share on other sites

Just to say that LTSB have agreed to close our ex limited company account which was about £1600 overdrawn. The company has been dissolved anyway but we had been paying in small amounts to bring the overdraft down to the amount of unlawful charges they owed us. I sent them a letter a few weeks ago saying 'OK now we are quits' and they have agreed to it.

 

Great result,

I'm certain this has relieved you of some ongoing pressure that I imagine you had envisioned was going to remain with you for a great deal longer than had thought.

Just goes to show what we can all achieve when we stand up for ourselves and say:

 

"..actually, I don't agree with your view"

 

Well done.

 

PM

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

Link to post
Share on other sites

Just come across this VERY interesting article:

 

 

10 January 2008

Article by Kevin Heath

This article was first published in Credit Today Magazine.

 

If you are buying distressed consumer debt, you need to be aware of:

 

the recoverability of charges made by the lender for the customer’s failure to comply with the credit agreement; and

the risk of receiving a claim from the customer under the new law on unfair (credit) relationships.

Default Charges

 

It is public knowledge (1) that default charges (2) applied by credit card lenders are legally challengeable by the customer on two discrete but similar legal grounds:

 

Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs): a term in a standard form contract is deemed to be unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights to the detriment of the consumer, e.g. if the provision has the object or effect of "…requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation".

 

Common law of penalties: where the contract stipulates that a fixed sum, which is not a genuine pre-estimate of the loss, is payable for breaching an obligation.

 

Overdrafts:In July 2007, the OFT commenced a test case against 8 lenders (3) to determine whether the UTCCRs and the law of penalties apply to overdraft charges. The lenders’ primary case is that overdraft charges are "core terms" under the UTCCRs because they are charges for a service, which is expressly excluded from the scope of the UTCCRs. To be heard in January or February 2008.

 

Unfair Relationships

 

The Consumer Credit Act 2006 enables courts to re-open "unfair [credit] relationships" (4) on behalf of the debtor or any surety.

The law applies:

 

now to all new credit agreements written from 6 April 2007;

from 6 April 2008 to all credit agreements written before 6 April 2007.

The new law will not apply if the agreement was written before 6 April 2007 and is or becomes a completed agreement (i.e. paid off) before 6th April 2008.

 

A court can make an order if it finds that the relationship between the creditor and debtor arising out of a credit agreement (or that agreement taken with any "related agreement") is unfair to the debtor as a result of:

 

any of the terms of the agreement;

the way in which the creditor has exercised or enforced any of his rights under the agreement;

any other thing done (or not done) by or on behalf of the creditor, whether before or after the making of the agreement.

The court is required to have regard to all matters it thinks relevant in determining whether a relationship is unfair.

 

Under the new law, the court can require the creditor to (i) repay any sum paid by the debtor or guarantor to the creditor or any other person; (ii) require the creditor to do or not to do (or cease doing) anything specified in the order in connection with the agreement; (iii) reduce or discharge any sum payable; (iv) direct the return of any property provided as a security; (v) otherwise set aside any duty imposed on the debtor or guarantor; (vi) alter the terms of the agreement; or (vii) direct accounts to be taken between any persons.

 

Once the debtor or guarantor claims that the credit relationship is unfair, the onus is on the creditor to prove otherwise.

 

Legal Issues For Debt Buyers

 

Can a debt buyer recover unpaid default charges from the debtor? In practice, no. The debtor is likely to dispute liability. The lender is likely to want to control any litigation risk of the consumer getting a judgment on the enforceability of the lender’s default charges. Debt buyers should keep the lender informed of any such challenges. When buying consumer debt, the buyer should ask for disclosure by the lender of the amounts unpaid by the debtor in respect of default charges on the accounts for sale, so as to take this into account in pricing the purchase.

 

Can the debtor off set his claim for default fees already paid against the non-default fee elements of the debt? Yes. When buying debt, the buyer should ask for disclosure by the lender of the amounts paid by the debtor in respect of default charges already paid on the accounts for sale, so as to take this into account in pricing the purchase.

 

Is the debt buyer liable to the debtor for repayment of default charges already paid to the lender? Until the new unfair relationship law is tested in this respect, there is legal uncertainty and debt buyers should assume that they are at risk.

 

Summary

 

The legal risk to debt buyers who buy consumer debt is that:

unpaid default charges are unlikely to be recoverable from the debtor and the debtor can off set paid default charges already paid to the lender (for up to 6 years) - both should trigger buy back rights (if invoked in time) and should be taken into account in pricing the purchase;

debt buyers could be liable to the debtor to repay default charges paid to the lender and an indemnity should be sought from the lender to cover the buyer’s exposure, including interest and legal costs.

 

 

Footnotes

 

1. On 5 April 2006, the OFT publically stated that it would presume that credit card default charges over £12 were unfair and would be challenged

 

2 .In a credit card contract, charges made by the lender for failure to pay a minimum payment on the due date, exceeding a credit limit or a failure to honour a payment made

 

3. Abbey National, Barclays, Clydesdale Bank, HBOS, HSBC, Lloyds TSB, Nationwide and RBS.

 

4. In considering the unfairness of a contract term for the purpose of the new law on unfair relationships, the OFT has said that it will have particular regard to whether the term is unfair for the purposes of the UTCCRs.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

  • Haha 1

All opinions and advice I offer are purely my own, and are offered without any liability. If unsure seek the help of a licensed professional

...just because something's in print doesn't mean its true.... just look at you Banks T&C's for example !

Link to post
Share on other sites

Now that is interesting.

 

Goldlady - CONGRATULATIONS

Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...