Is contract the correct basis for charges claims?

[TANZARELLI]

I don't know how he does it for the money! (Espesch in his current avatar situation too - what has he got down there? )

 

Prob monkey nuts. lol

[BankFodder]

Please pardon the intrusion, I am having a recurring nightmare here. I believe I may be able to explain why BF's original post here has not been discussed until yesterday. I believe you will find it was originally made on Bong's thread here, but then immediately removed for some reason:

Not correct.

[photoman]

I agree, there were some misunderstandings or lack of communication that caused some unnecessary friction, and nearly cost us the valuable contributions of some valuable members (one in particular).

I do hope, that whether publically or privately, this matter can now be resolved, and those concerened can make up, join forces back together, and get back to to main job at hand, by focussing upon the real adversary.

 

This should then be celebrated by making this thread a sticky !!

 

Now....... regards the title of this thread?

 

Simple question...... yes or no ?

[bill-k]

I see that the principle of unjust enrichment has been referred to in this thread.

My apologies, good sir. Then may we know which thread ?

[sarahpp]

I'm quite perplexed now actually, to think that there was all that kerfuffle and confusion a few months back while this post had all the while been written. Seems it could have been nipped in the bud there and then. No point crying over spilt milk and all that but there were a few casualties from those discussions that could have been avoided in my opinion.

 

Indeed, all very sad and avoidable.

[nevos]

Hi all, was it not the party line to include the CI and in the alternative the s69? A lot of confusion arose from the spread sheet scenario?

[Mad Nick]

Nevos, that's what I thought.

 

Bong, Glenn, aren't we in violent agreement - the contract allows a Bank to charge for unauthorised overdraft but the charges are disproportionate and not a genuine pre-estimate and are therefore unfair and unenforceable (UTCCR and case law on LDs). I can't help thinking we're getting hung up on semantics. UTCCR is about contracts and the case law on LDs relates to contracts.

 

All of that is in relation to reclaiming the charges and associated overdraft interest and 8% on top. Perhaps the better question is whether the contract is the basis of claims for CI. CI brings in all the stuff about disgorgement, breach of trust (fiduciary relationship), exemplary damages, and all the other ideas people have come up with to justify CI claims, but even those exist as arguments because there was a contract which the Bank used to take money.

 

Regards, Mad Nick

[nevos]

Hi MN, In my opinion, unauthorised overdraft is a pure form of enrichment for the Banks, I mean it has been authorised by the Bank or it cant exist at all, unless you use your cheque card to take your account into an over limit state, which could be deemed fraudulent behavior.

 

In my opinion again, I do believe the CI is a band wagon for those who will be fueled by greed and avarice, which takes us to the same level as the banks, how long will it be before the banks legal eagles find a get out on these claims with CI.

 

Most people subscribing to CAG can hardly operate the simple spread sheet let alone navigate through the ones with CI hence, the rift caused between some members on this topic. Yet we see claimants wanting to add CI to small claims, then they find the banks fighting that bit harder.

 

It is understandable from the CAG powers that be, this was high lighted to put more pressure on banks to change their charging policies but, we must keep things in prospective, I for one would be content to get charges back plus the s69. I also believe for most the return of what was considered lost money is a pure windfall.

 

These are just my own opinions.

[TANZARELLI]

I for one would be content to get charges back plus the s69. I also believe for most the return of what was considered lost money is a pure windfall.

 

Nevos,

 

This is a valid opinion, however, why should the banks be allowed to profit from unlawfully taking our money as a direct result of disproportionate levying of what are penalty charges, which are irrecoverable under common law. They unjustly enrich themselves at our expense and should not be allowed to do so.

 

Whats good for the goose is good for Tanz.

 

Tanz

[thereshope!]

With you all the way there Tanz:)

[Glenn UK]

Nevos, that's what I thought.

 

Bong, Glenn, aren't we in violent agreement - the contract allows a Bank to charge for unauthorised overdraft but the charges are disproportionate and not a genuine pre-estimate and are therefore unfair and unenforceable (UTCCR and case law on LDs). I can't help thinking we're getting hung up on semantics. UTCCR is about contracts and the case law on LDs relates to contracts. This where the confusion lies imho, the penaltys are not unlawful under the UTCCR. The term may be unfair but its because it creates and imablance between the two parties is it not? The remdey to an unfair term is to appyl to have it struck out should the benfiting party try to impose it rather than to claim back the money post event i would have thought.

The panaltys are unlawful at common law and this dates back to Dunlop Vs New Garage and probably beyond.

 

All of that is in relation to reclaiming the charges and associated overdraft interest and 8% on top. Perhaps the better question is whether the contract is the basis of claims for CI. CI brings in all the stuff about disgorgement, breach of trust (fiduciary relationship), exemplary damages, and all the other ideas people have come up with to justify CI claims, but even those exist as arguments because there was a contract which the Bank used to take money. I agree this issue but whether the penaltys should be claimed on the basis of the contract is a moot point and one well made by bf in the original post since there is actually no breach on the banks part.

 

Regards, Mad Nick

 

Oh how i wish i had studied contract law isntead of what i did,

 

Glenn

 

GLenn

[nevos]

What the Banks have done by means of a cartel is to create a monopoly in the true sense of the word i.e. exclusive control of a commodity or service in a particular market, or a control that makes possible the manipulation of prices. This clearly causes an imbalance in any form of contract.This in my opinion is worth a look at, as it would render all the contracts unlawful or at least dubious.

 

If one is to push home the reciprocal case for CI then, there should also be a case for damages due to the severe hardship caused to most claimants. This you would need to prove that you suffered actual loss but what price is the stress on say, a woman with 2 kids on social with no money to eat due to charges and the pensioner who lost her pension for several weeks due to charges.

 

I'm just throwing this into the pot for discussion.

 

I would also like to know which criteria the banks used to increase the charges from typically £25 to £38 inflation, increased over heads or sheer : We can do what we want coz we all do it.

 

We could say the same about Tesco, Sainsbury and all the other cloned shopping areas with Muck Donalds, Burger King, and the final week of the DFS sale for the past 15 years

[elsinore]

I would also like to know which criteria the banks used to increase the charges from typically £25 to £38

 

Me too, nevos, may be we should ask them

 

An example from my LTSB business account.

On 7th October 2003 the default charge was £27.50. By 14th October 2003 the default charge had risen to £30.

If I find myself in court with LTSB over my claim, here are some questions I would ask them:

 

What seismic event took place in the weeks prior to 14th October2003 that compelled you to increase your charge by 9%?

Did you have to employ scores more staff to deal with this specific aspect of your business?

Had the number of default charges fallen, resulting in an increase in the cost per charge?

Was the installation of increasingly efficient and fast-acting computer systems proving to be more expensive than you had previously thought?

Or could it simply have been that you saw an opportunity to easily increase the bank’s profits, in the belief that your customers could do nothing about it?

 

If they can’t justify the increase, they can’t justify the charge.

 

Els

[nevos]

Hi Elsinore: Quite, how can they justify the continuous lift in charges.

 

Someone just posted the Tom Brennon web site regarding NatWest http://www.tombrennan.co.uk/

 

Heres a clip from it:-

 

I will be arguing that the actions of Natwest amount to the tort of intentional infliction of harm by unlawful means (also known as unlawful interference with an economic interest). This is quite a technical legal argument based on a comparatively new and still-developing area of law. If the judge agrees with that argument, then I shall also be arguing that exemplary damages should in principle be awarded against Natwest if a judge finds that the charges imposed by Natwest are unfair under The Unfair Terms in Consumer Contract Regulations 1999.

------------------------------

I notice that the Banks are now saying there has been no breach of contract etc, cloaking I think is the expression.

[RedDeath]

Just subbing to this one...very interesting reading.

[aqua2]

I know it's only my claim and judge can laugh at me if he wants, but if I dont ask, I dont get, but here is the basis...

 

I will need to fight hard under UTCC, as bank claim I have not breached my agreement and the charges are a fair and reasonable fee for a service.

 

Ok, now I dont want to prejudice other parts of my test, so I really dont want to prove to the court, that I breached the agreement (Only in my case).

 

In that case, I will argue UTCC on any supposed breach, without directly admitting breach.

 

Next I will argue under SOGA, that charges were not a 'reasonable' fee for a service and will try and get directions to disclose costs, to prove they were not.

 

(Everyone seems to concentrate on UTCC, does anyone know if SOGA, is that much weaker an argument?)

 

I think I have posted elsewhere rough figures of my own suggesting cost is actually less than 50p, based on the cost to me of sending 300 mailshot letters out, to clients in my database.

 

Now, in the terms and conditions on the banks web site, my unauthorised borrowing incurs an interest rate of 29.8%, so therefore, we have a term stipulating the unauthorised borrowing rate.

 

Now, I have argued that this represents a FAIR, yes FAIR term, not the penalty's, just the higher interest rate 'per se'

 

But in order for this term to be legitimate under UTCC, my argument is that it has to work both ways, I have to have the equal remedy, so therefore I am entitled to charge 29.8% when the bank take my money without authorisation.

 

If it is found that the contract does not afford me the right to 29.8, then under the UTCC, the term that allows the bank to levy such a rate is also unfair and as such I want all of the interest charged at that rate, back. (Not just the interest on the charges)

 

and in that case, I require statutory 8% on all the sums taken. (On my figures, it actually makes little difference to the final payout.)

 

So my argument is that when it comes to the higher interest rate, there is a term that stipulates if I borrow without advance permission, I must pay the higher rate.

 

Any terms as to exceeding overdrafts, not having sufficient funds etc I cannot see are required, in respect of contractual.

 

I am fighting purely on the term that says unauthorised borrowing attracts the higher interest rate, but does not afford me equal protection.

 

Now if, I repeat if, somehow, I manage to get through this, without admission of a breach. i.e. Clean Hands, then I will push for equitable remedy against Fiduciary.

 

So, it will help me if anyone has counter arguments, that will scupper me, so that I can prepare for them....

[TANZARELLI]

Hi aqua,

 

I would say that with more of the banks stating they are providing a service and that there fees are for the service they are providing, then this should be something which we need to consider a strong arguement for. The SOGA should help us there.

 

I see why you are not admitting breach of contract and see this as a good move IMHO. Carefully worded POC's are needed, but alot would I suppose depend on the strength of the banks defence and how well we can bat it back to them.

 

I am sure the banks will argue the fiduciary aspect of claims like these at some point so this we need to nail on to them so they cant wriggle out of it.

 

Tanz

[Gez]

An argument for 'unjust enrichment' that I use is that the banks have profited by re-lending my money at whatever% & have done since they started looting my account. When you seek to have the bank disclose their true costs, you could also request that they show how much profit they have made from the sums you are claiming..

[nevos]

I am fighting purely on the term that says unauthorised borrowing attracts the higher interest rate, but does not afford me equal protection.

 

Aqua: Would the Bank say their overheads are much greater than yours hence the high charge.

[Gez]

Well they could, so they better show them in court..

[TANZARELLI]

Yep if they can prove it then fine we have know case, surely they would have done this previously without having to shell out thousands of pounds to its customers.

 

Tanz

[aqua2]

Aqua: Would the Bank say their overheads are much greater than yours hence the high charge.

 

Yep, i'm all ready to bat that one, back to them, using their own letter...

 

You see, when the bank levy a charge for unauthiorised borrowing, which they then repeat daily, I have to take action to put more money into the account....

 

"...and it all has to happen very quickly", because tomorrow, they will levy another charge.

 

So to do this, I have to ring around to find someione who can let me have funds £2.50, then i have to take time out from work, say 2 hours = £18.50, then i need to use my car, or find alternative transport, to both collect the funds and go into my branch to pay the funds in say 10 miles = £5.00, so immediately, I have to pay £26.00.

 

Add that up twice a month over 5 years. Hmmm.

 

However, I dont believe the UTCC, says dpeending upon circumstances.

 

I think it just says the term must afford the consumer the same protection, in the same circumstances.

 

Thanks Nevos, that's what I need, arguments against, to make sure I cover the bases.

[Glenn UK]

the problem is its all or nothing isn't it?

 

If you haven't breached your contract then you cannot claim they are penalty charges and therefore you must win the disproportionate costs argument for a service.

 

Seems to me going this route you are accepting the imposition of the unlawful charges as a service and therefore weakening the position that the charges were penalties.

 

As a service you are accepting, why have you waited x years to challenge them? The arguments don't work as well IMHO as they do when they are penalty charges which have been concealed.

 

I would also suggest that you rethink your strategy and use arguments in the alternative. It something which seems to be usual from a legal viewpoint, it was x) but if the Court doesn't agree with that then it was y) and if you don't like that then it was z).

 

I am not sure that arguing on the basis of a single point of law is advisable when there are other routes which you can add legitimately.

 

Re their overheads being higher - the counter to that is the millions of letters they send out reduces the cost per unit and the overheads are ameliorated over all of the letters generated i would have thought? The fact that for a small mail shot you can pay a third party the cost plus a profit and it costs less than 50p per item would seem to be compelling.

 

JMHO

 

Glenn

[aqua2]

Hi Tanz,

 

Agree with everything you said.

 

On this thread, the question only concerned whether there is a contractual basis for the higher interest rate, so I've tried to stay with that.

 

Gez, I like your points.

 

The more I read and take in about these claims, where people are trying to get the higher interest rate and either account for profits or compounded interest, the more I reach the conclusion, that for the charges themselves, SOGA should be the primary tool, for the higher interest rate, UTCC should be the primary and for compounded or account, fiduciary under equity should be the basis.

 

Naturally, each should be backed by any other relevant regs as a lifeline.

 

What I need, is someone to blow away my arguments...

 

Mind you, 2 days for Lloyds to defend, so let's see how they do, as well..

[nevos]

Hi all, I was reading on an alternative claim your charges back site recently where, claimants were sending off Pre-Lims and LBA's with undisclosed amounts of claims in them. This apparently was done in cases where the claimant did not know the full extent of the charges etc. I guess on the grounds that the Banks can access this info in minutes as we see more and more extracted lists of charges computer generated.

 

It struck me that this could speed up the process provided, one has sent an SAR so, your claim can be moving along until you will get the statements. In the end you know what your charges have been, this could IMO save at least a months waiting time thus, beating them at their own game a bit. Then you could whack them with the incredibly inflated claim at the last minute.