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    • I'm trying to work through this step-by-step as I read the story again. There was a dispute over a will in respect of your grandfather's house but the dispute was eventually abandoned and it seems that the house was apportioned to your mother and her brother who presumably were the only two children. The will was unsigned and so we could say that the house passed to the two of them under the rules of intestacy. You then decided to buy the house for £50,000 and presumably the money you paid was divided between your mother and your uncle – you are the owners of the house. This was in 1999. We talking about 30 years ago here and so in respect of most legal questions I would have thought that some limitation period applied. (However the issue of the trust has been raised – and this wouldn't be affected by limitation) However, presumably the house was bought at a proper value given the market at the time and any work that it needed doing. Presumably the house was properly conveyed. Although a lot of things have passed – including home improvements, tenancies et cetera, from the store you have told us, neither your parents nor your uncle have been involved in this at all. Now you have received a letter from your parents saying that the house is really theirs and that you have simply been holding it on trust for them and they now want it back. Is this a reasonable summary of what has happened?   Although you have written a fair bit about bills, tenancies, and that you have lived in your parents home for some of this 30 years, I'm not sure what relevance that has to the problem. I have to say that your explanation is very unclear. A bit rambling in fact. If you think that part of the story is relevant then maybe you'd like to express it all a little more clearly and say in what way you think it is relevant to the problem. You are much more familiar with the story then I am but I don't see that those factors are terribly important on the brief understanding that I have. if if any money is owed to your parents because of you having lived with them et cetera then it seems to me that that is a separate matter and has nothing to do with your ownership of the property. You say that you have received a letter from solicitors claiming first of all that there is a constructive trust or that you might be subject to a proprietary estoppel. In terms of the estoppel, that doctrine is only available in very particular circumstances and could not be used to attack you in any event. Estoppel, whether it is proprietary or promissory can only be used as a defence. So the question of estoppel in this situation is completely irrelevant, in my view, although I don't see any basis for one in any event. So what remains is the possibility of a constructive trust. It seems to me to be highly unlikely that there is such a trust and I think that the first question needs to be asked is on what basis they consider that there is a constructive trust. Secondly, of course, even if there was a constructive trust, on the basis of what you have told us, it wouldn't only be your mother who was the beneficiary, it would also be your uncle. Furthermore, if you were a constructive trustee then at the very least you would be entitled to recover all of the expenses that you had laid out over 30 years – including the cost of the property plus interest – less any financial benefit that you had accrued from renting it out and so forth. I'm not sure how good this analysis is. This is well out of my experience – but I would suggest that you consider it and see whether any of it rings true. I would also start making a very detailed account of all the money which you have spent over the years on the property and also a detailed account of all the benefits you have accrued from it. I would supply this to their solicitor that if you end up having to instruct your own lawyer then I'm sure that you may be asked for this if there is any suspicion that a constructive trust may exist. Frankly it sounds like a load of rubbish to me that we will be very interested if you will keep us up to date. So there you have it. No particular answers. Just a few unsupported and unqualified opinions    
    • Hello and welcome to CAG.   I agree with dx, hiring a lawyer is unlikely to help as most of them don't understand fare matters, so you end up paying for their learning curve.   Your idea about involving your GP is a good one, it sounds as if you need their input with how you're feeling. And if they would write a supporting letter that could help too. Hopefully your medical information will be through in time.   HB
    • In the very first claim thread it mentions contacting the claimant is encouraged by the court etc. I was thinking about contacting them and asking about a Tomlin order to put an end to all this, at least I'd be able to stop worrying and maybe get some sleep (currently 4.52am) 😴
    • Hi I'm looking for a bit of help to deal with a claim form from Hoist/ Cohen referencing an old Capital One account please. I have filled out the details below as requested and submitted an acknowledgement of service intending to defend.   In 2007 I sent a SAR and requested a copy of the original CCA from Cap One on this account.    In 2014 Lowells sent a claim form for the same account. I have a copy of a notice of allocation to the small claims track hearing and a copy of the front sheet of ack of service with intent to defend but I have no recollection of its outcome and there are no CCJs on my credit file.    Name of the Claimant Hoist Finance UK Holdings 2 Ltd   Date of issue – 5/11/2019   Date of issue 05/11/19 + 19 days = 24/11/2019 + 14 days to submit defence = 7/12/2019 (33 days in total)   Particulars of Claim This claim is for the sum of £294 arising from the Defendants breach of a regulated consumer credit agreement referenced Under no XXXXX. The defendant has failed to remedy the breach in accordance with a default notice issued pursuant to ss. 87(1) and 88 of the Consumer Credit Act 1974. The Claimant claims the sums due from the Defendant following the legal assignment of the agreement from Hoist Portfolio Holding 2 Ltd (EX CAPITAL ONE). Written notice of the assignment has been given. The Claimant claims 1. The sum of 294  2. Costs   What is the total value of the claim? £369   Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC I received a letter of claim & income / exp forms.   Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? yes   Did you inform the claimant of your change of address? Not sure claim is for Credit card   When did you enter into the original agreement 2003   Do you recall how you entered into the agreement not sure   Is the debt showing on your credit reference files yes, as closed   Has the claim been issued by the original creditor. Assigned   Were you aware the account had been assigned – did you receive a Notice of Assignment?  from HPH2 to HFUKH2L, I don't have anything from Cap One.   Did you receive a Default Notice from the original creditor? Yes (2007) Have you been receiving statutory notices headed “Notice of Sums in Arrears” or " Notice of Arrears "– at least once a year ? Not sure, I’ve had letters from Robinson Way.   Why did you cease payments? illness and inability to deal with my debts, I had no money no job and my mental health was in a terrible state.   date of your last payment? 07/2014 paid to Robinson Way   Was there a dispute with the original creditor that remains unresolved? No (PPI and bank charges refunded)   Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes   Do I send a CPR 31.14 next asking for the agreement, notice of assignment and the Default notice?   Thanks.
    • It states the charge as: 'did enter a compulsory ticket area without having with you a valid ticket. Contrary to Byelaw 17 (1) of the Transport for London Railway Bylaws Made under paragraph 26 of Schedule 11 to the Greater London Authority Act 1999 and confirmed under section 67 of the Transport Act 1962.'   Then a brief statement of facts that the pass did not belong to me, and that I had stated it was due to financial reasons. It then contains information about making my plea and then the statement of the revenue officer.   I am of course planning on pleading guilty before the cut off point and attending court (I'm hoping to be well enough to attend anyway). I'm just concerned about the consequences and if there is any point in trying to still reason with TfL now that court application costs are at least involved.   I have debated getting a solicitor solely because of what I've read on the internet and what it says about ruined job prospects, I know it's probably scare tactics to get me to hire someone but it is the driving fear behind everything at the moment. 
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adamc6671

JimmyBoy vs LloydsTSB

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Hi All - Just starting a thread for a claim for just under £3k + just under £400 SI against Lloyds, that I'm helping a friend with.

 

LBA sent 26 March, which has now expired so just about to file Court claim. Only response from Lloyds has been letter they sent in response to our initial letter to them (which we sent Feb 07), saying they would reduce the charges levied by crediting his a/c with £750, which to date they have NOT done! Why on earth do they bother making these responses if they have no intention of honouring their promises?????????

 

Will keep thread updated as things progress. Am I right in assuming that Lloyds are one of those that push you right to the Court door before settling?

 

If so, we're prepared for it, thanks of course to CAG.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Hi i am about to send my LBA and am also expecting a £750 offer. This seems to be the norm with LTSB and usually they pay it into your account without you knowing.

 

It also appears Lloyds do hang on as long as possible in comparison to other companies. You will find many topics which suggest this.

 

Best of luck.

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Thanks Champnos. JimmyBoy checks his a/c every day, and they certainly haven't paid anything into it yet!

 

Do you have a thread for your claim? If so I'll keep an eye on it.

 

Best of luck - Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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I do, Karl vs LloydsTSB, only added it today.

 

I keep saying "good luck" when actually luck is not needed as the charges are already known to be unjust, so -

 

All the best

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Hi All - a request for some advice please:confused: :confused: :confused:

 

I have recently read several posts by MisterMind, mainly in this forum, in which he classes bank charges as falling into one of two types.

 

Type 1 he defines as a charge, of up to about £38, for simply refusing to pay something (D/D, S/O, cheque etc) from which action the customer derives no tangible benefit, and therefore cannot be classed as a fee for a service. These are often applied automatically by a computer, with little or no human resource input. It is, therefore, nothing short of a 'Penalty' charge which is NOT recoverable at Law, and can therefore be claimed back. Also in Type 1 I would put charges for exceeding agreed overdraft where this has happened only due to the bank taking Type 1 charges.

 

Type 2 he defines as a charge the bank makes for agreeing to pay something that DOES take the a/c over its agreed overdraft limit. The customer HAS derived a benefit from the bank agreeing to do this, and therefore the charge IS a fee for a service, for which the bank is lawfully entitled to charge (in the same way that any other service provider is entitled to charge for their services).

 

I actually agree with these definitions, and can appreciate the total fairness of seperating charges in this way. Apparently, according to MisterMind, Lloyds ARE still agreeing to pay claims consisting only of Type 1 charges, but are very likely to defend claims for Type 2 charges. There is a 'grey area' for claims consisting of both types, but his feeling is they are likely to fail, especially in the light of recent history.

 

I have carefully reviewed JimmyBoy's claim against Lloyds, which is at the 'Court claim acknowledged' stage, and have found that some of his charges are indeed of Type 2.

 

As a result I am seriously thinking of writing to Lloyds TSB and offering to settle 'Out of Court' for a sum equivalent to only the Type 1 charges, plus of course, 8% interest and Court fees.

 

I would be VERY grateful for any opinions on this - many thanks - Adam. :confused: :confused: :confused:


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Pinpointing Dunlop's unlawful portion

 

Just to clarify, if I understood the Dunlop v Garage 1915 precedent right, the penalty charge in question was legally justified and enforceable, but only up to the amount which Dunlop suffered thanks to the Garage's breach of contract. The remainder, whether it be a Dunlop profit or an amount chosen as a slap on the Garage wrist and which Dunlop might choose to donate to charity -- was unlawful. Compensation at cost is due to the injured party, but fines are the prerogative of law courts.

 

Oxford precedent of partial refund

 

Type 1 charges are currently refunded in total rather than in part, only because banks up to now have no appetite to reveal in court the true cost price of their cheque bouncing. There was an Oxford court hearing barcote v Egg hearing on 21st November 2006 where claimant, defendant, and judge settled for £5 compromise per charge, with the excess unlawful charge refunded. Both litigants had no appetite to publicize this verdict which dropped out of awareness. If in future banks ever decide to bite the bullet and settle for a new, lower charge backed by law, then retrospective Type 1 full refunds could I think switch into partial refunds.

 

Failed precedent of Type 2 reclaim

 

After a whole year and perhaps 100,000 settlements the legal position has been clarified by a single Approved Judgement -- Berwick v Lloyds. I looked for Rudd v Lloyds Judgment on the web without success, and doubt if Mr Rudd who did not bother to attend court has posted on CAG before or since. Following Berwick v Lloyds came a new Lloyds template letter announcing a definite change of stance -- in everyday English Lloyds will now fight Type 2 reclaims, but as for Type 1 reclaims there was complete silence. Lloyds actions, post-Kevin, have not been silent though, speaking via a continuous stream of (24 counted by MoneySavingExpert.co.uk) out-of-court full settlements without pause or hesitation. I am only guessing these were all Type 1 reclaims. If anyone knows different, please post.

 

Kevin's reclaims included both types. It's not that Type 2 Service Fees are immune from legal challenge, just that challenge turns not on capping at cost price but on "reasonable price". Kevin's argument did not convince Judge Cooke, but this is not to say all future arguments will necessarily fail in court.

 

Dropping Type 2 reclaim ?

 

The pragmatic question is, if Type 2 reclaims fail in court, will they cause the accompanying Type 1 reclaims to be dismissed in one job lot? As yet I do not have an answer from lawyers.

 

Lloyds are evidently avalanched under, and I have read other postings where the idea of £750 "goodwill" settlement was mentioned but not paid into the claimant's account. If Lloyds have issued their staff with clear new instructions to settle pure Type 1 reclaims without fuss, it is questionable if Lloyds really want to waste time on ritualised court paperwork. In which case a letter in everyday English could lead to a resolution faster than the courts. It may help to speed things up, if copy statements were enclosed, to demonstrate every Type 1 charge arose from a pure bounce, not an honoured bad cheque.

 

If you did want to drop Type 2 reclaims to protect your Type 1's, then I suggest any approach to Lloyds using everyday English should say something like:

 

"Whilst I remain convinced all my original reclaims are valid in law, in view of recent Lloyds letter setting out Lloyds fighting stance against Type 2 reclaims but not against Type 1, I am reducing my reclaims to save time and effort. I am speaking from a position of reasonableness, not weakness."

 

I do not advocate dropping Type 2 reclaims, although I would not pursue them if I were myself reclaiming at this time. My guesswork only, not based on legal training. Do seek other opinions.

  • Haha 1

 

 

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A million thanks, MisterMind - hugely appreciated.

 

I'll post again when I've fully taken in all you've said, but I do feel more strongly now that I'd be doing the right thing in dropping Type 2 charges in order to protect Type 1, which may well speed up payment as well.

 

Once again, many thanks - Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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In view of MisterMind's reply, this is the main body of text I'm thinking of using in a letter to Lloyds -

 

" . . . .I write, regarding the above claim, to say that I have taken further advice on this matter, and have taken part in far reaching and in depth discussions on the issue of bank charges in general terms.

 

As a result of this I am now of the opinion that it might be possible to define bank charges as falling into one of two types, as follows.

 

Type 1 could be defined as those charges levied by Lloyds for simply refusing to pay something (a Direct Debit, a Standing Order, a cheque, etc) from my account, or a charge for exceeding my overdraft limit when this has been due only to Lloyds levying this type of charge upon my account. In these cases I, as the customer, have derived no benefit from Lloyds' actions, and the charge cannot therefore be defined as a fee for a service. In most cases this type of charge is applied automatically by a computer, and with little or no human resource input. This type of charge I can therefore construe to be a Penalty charge, which is not recoverable at law over and above that which it has actually cost the Bank – reference Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79. I believe I can, therefore, make a valid claim for the repayment of this type of charge.

 

Type 2 could possibly be defined as those charges levied by Lloyds upon my account for agreeing to pay something(a Direct Debit, a Standing Order, a cheque, etc) from my account which did cause me to exceed my overdraft limit. In these cases it may be possible for Lloyds to construe that they have provided me with a service, and for which service they would be lawfully entitled to charge me an agreed and reasonable sum.

 

In view of the above I am prepared to make you the following Without Prejudice offer for an Out of Court, and early, settlement of my claim in order to be reasonable, to avoid expending any more of the Honourable Court’s valuable time, and to avoid you and I expending any further time or incurring further expense. I am prepared to settle for repayment of the ‘Type 1’ charges only that have been levied upon my account over the last 6 years, as shown on the attached updated and revised schedule, plus Statutory 8% interest, and Court fees already paid. This is a total sum of £****.**, which represents a reduction of £***.** on my original claim. I will accept this revised figure only upon the condition that you agree to settle at this sum within 14 days of receipt of this letter, and before the necessity arises to file any further paperwork with the Honourable Court. Failing this I will pursue my claim vigorously in Court, and will amend my Particulars of Claim as appropriate. . . ."

 

 

This represents a reduction of only a few hundered pounds on the original claim of about 3.5k, and I think it may well be worth going for if only to speed up the process and to greatly reduce the workload.

 

Would be very grateful for further opinions - many thanks - Adam


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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"Without prejudice" means the letter cannot in future be produced in court. If you accept a settlement then later go to court, Lloyds will want to produce your letter in evidence. So no point saying "without prejudice".

 

Lloyds mentally know everything about the differences between Type 1 and Type 2, only they will never have heard of such classification names unless they read CAG. I am inclined not to teach grandma to suck eggs, to say less is to achieve more. Not even to mention Type 2 charges which do not appear on your Reclaim List, just to make the itemised evidence obvious that ALL your Type 1 reclaims are due to straightforward cheque/DD bounces where you derived on each occasion:

 

no benefit

no favour

no help

no service.

 

Hence these were Dunlop-v-Garage style penalty charges for breach of contract, no question of them being dentist style commercial service fees or lender-borrower fees. Lloyds understand everything. They do not need explanations, they only want to confirm that you do understand the principle, in which case there would be no point in their stalling or riding a dead horse to court.

 

Provided all conditions are clearly fulfilled, and all boxes ticked, I would imagine your case will then be placed in the uncontroversial Action Tray, with lolly for your account sooner rather than later. GL.


 

 

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Originally Posted by AJX viewpost.gif

Hi

 

Today a letter arrived from Lloyds TSB solicitors along with a letter from from Birmingham courts requesting further information for the Judge by June 7th.

 

“The bank will be defending these proceedings on the following grounds :

 

1. The fees that you are seeking are properly incorporated into your contract with the bank; and

 

2. By making payments (whether by cheque, debit card or by any other means) from your account where you have insufficient funds to cover them, you are making a request to the bank for an increased overdraft, which the Bank may meet or decline. If it meets your request you must pay the necessary charges. The issue of penalties only arises as a matter of law, where there has been a breach of contract, and there is no breach of contract here.

 

Looking ahead, a situation which gives rise to dispute is not one the bank wishes to continue. In view of this you are requested, please, to make contact within the next 14 days with your local branch manager to review your account. A review may be useful to consider whether your current banking arrangements are the most appropriate for your needs.

 

We await confirmation from the bank that this action has been taken.”

 

With an overdraft of £5000 and bank charges of £5000+ and following advice another account has been opened.

 

Advice on this will be most welcome.

 

 

 

This is the critical clause in the new Lloyds template letter posted earlier on this thread, which ought to be quoted or enclosed verbatim in your letter without comment, so as to give notice that in case of future argy-bargy you are ready to hold Lloyds to a stance they publicly announced in black and white, namely:

 

If Lloyds granted an O/D the bad cheque writer must pay the charge,

 

(i.e. if Lloyds declined an O/D, but bounced the cheque, then the customer can reclaim charges without a fight? I hope. They will never admit this unwritten inference, but looks as if that's what they do in practice.)


 

 

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Thanks again MisterMind - will revise proposed letter and post again when I've done so.

 

Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Hi All, and especially MisterMind

 

This is the revised text of the letter I am seriously thinking of sending to Lloyds, on the basis that I am quite happy to accept repayment of 'Type 1' charges only.

 

" I write, regarding the above claim, to say that I have taken further advice on this matter, and have taken part in far reaching and in depth discussions on the issue of bank charges in general terms. I have become aware of the ‘template’ letter that Lloyds TSB has recently sent to other Claimants, which letter contains the following statement –

 

“ 2. By making payments (whether by cheque, debit card or by any other means) from your account where you have insufficient funds to cover them, you are making a request to the bank for an increased overdraft, which the Bank may meet or decline. If it meets your request you must pay the necessary charges. The issue of penalties only arises as a matter of law, where there has been a breach of contract, and there is no breach of contract here. . “

 

As a result of this I am now aware that many of the charges levied upon my account by LloydsTSB are for simply refusing to pay something (a Direct Debit, a Standing Order, a cheque, etc) from my account, or a charge for exceeding my overdraft limit when this has been due only to LloydsTSB levying this type of charge upon my account. In these cases I, as the customer, have derived no benefit, no help, no service, and no favour from the Bank’s actions, and the charge cannot therefore be defined as a fee for a service. In most instances this type of charge is applied automatically by a computer, and with little or no human resource input. This type of charge I can therefore construe to be a Penalty charge, which is not recoverable at law over and above that which it has actually cost the Bank – reference Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79.

 

In view of the above, and whilst remaining of the opinion that I have a valid claim for all charges levied upon my accounts, I am prepared to make you the following offer for an Out of Court, and early, final settlement of my claim in order to be reasonable, to avoid expending any more of the Honourable Court’s valuable time, and to avoid you and I expending any further time or incurring further expense. I am prepared to settle for repayment of the above type of charges only, that have been levied upon my account over the last 6 years, as shown on the attached updated and revised schedule, plus Statutory 8% interest, and Court fees already paid. This is a total sum of £****.**, which represents a reduction of £***.** on my original claim. I will accept this revised figure only upon the condition that you agree to settle at this sum within 14 days of receipt of this letter, and before the necessity arises to file any further paperwork with the Honourable Court. Failing this I may amend my Particulars of Claim as appropriate, and I will pursue my claim vigorously in Court. . "

 

Any comments or opinions would be greatly appreciated. Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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The court is Small Claims, no doubt it is Honourable. Not being common usage, the latter word could cause a jerk to the reader and distract from the message, so I should leave it at "court".

 

Lloyds letter, after translation said, I think,

"If we agree your implied overdraft application, then you have to pay a service fee." If Lloyds decline your application, then what? They said nothing -- the dog which Sherlock Holmes listened for, did not bark in the night. A nod and a wink is as far as Llooyds want to go in public, with lawyers intentionally protecting their future options through opaque ambiguity. Their actions post-Kevin however, have spoken for their strategy post-Kevin.

 

Your detailed explanation is in danger of clarifying a position they do not want clarified. After accepting a settlement you potentially could go all over and say, "See, Lloyds agreed to my letter beforehand, and their actions show this this this is the bargain, i.e. Lloyds have publicly committed themselves to a position."

 

If you prefer your letter to be explicit where Lloyds prefers things implicit, then fine. But it would help to calm Lloyds nerves if you also offer to accept settlement with confidentiality. That way they will be protected against their action being explicitly characterised and predictable -- in public. Your file will then not be passed from desk to desk as they agonise and come back arguing.

 

I am inclined to clarify the phrase "and court fees already paid" with "and court fees already paid by me".

 

GL.


 

 

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Thanks again MisterMind.

 

Most suggested changes duly made. However I am having difficulty making the detail any less explicit, or rather inplicit, whilst still making the relevant points. The only thing I can think of is to change the last sentence in the 3rd paragraph to start ". . . . This type of charge can therefore be implied to be a Penalty Charge . . . . ."

 

As for confidentiality, I think I'm inclined to let them offer a settlement with confidentiality rather than offering it for them, although I understand the point you're making. Perhaps I need to think about it for a little longer!

 

Once again, many thanks - Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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MisterMind - I wonder if I may ask you one further question?

 

I have a claim running against Abbey (which is at AQ stage) for my 'other half' (Tish vs Abbey). Do you have any feeling as to whether or not it would make sense to offer to reduce that claim to 'Type 1' only? In other words, do you think the other banks are likely to follow Lloyds lead in taking a stance against 'Type 2' claims? It would, incidentally, mean reducing that claim from about 4.3k down to about 2.5k, but would be worth it if it were to significantally increase the chance of success.

 

Many thanks - Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Adam,

 

Lloyds appear to have made a policy switch. Before April they fought nobody. Now they have fought twice and won twice, and making ever more threatening noises. Before April was the time to reclaim, but now that chance is gone.

 

They have made their decision for their own reasons. I see no point in explaining their thinking to them. If they want to fight you they will, if not, they won't. Their decision will not be swayed by your essay on Type 2, as you are not reclaiming Type 2. Lloyds only want to look at your actual claims, then they will put you in either the red tray (7) or the green tray (86). The danger of writing an essay is that they could put you in the amber tray -- for a long time, while they figure out the implications of what you are saying. For sure nobody else has sent in an essay on this subject.

 

I haven't really kept up-to-date with the large Lloyds Forum, only started reading a FEW Lloyds threads since Kevin. This site seems to favour freedom of speech, on an unco-ordinated basis. Somehow over a period some good ideas emerge along with bad ones. And readers decide which poster to pay attention to. In an urgent situation (as now) however, it is very difficult to collect info together from firsthand front line -- which bank is saying what, and above all what are they doing.

 

What news I picked up from Lloyds only came from what worried claimants posted. I have hardly read a single post in the Abbey Forum, so I cannot work out if Abbey is about to copy Lloyds change. Although there are Mods, there is no CAG Helpdesk, and no reliable centralised up-to-date newsline.

 

I really do not know what Abbey is up to, whether they intend to ambush as Lloyds did. I can only suggest, reading as many threads in Abbey Forum as possible, as you would not like to lightly give up Type 2's on Abbey. The obvious move would be to post a question in Abbey Forum: has anybody successfully reclaimed Type 2's? Approx how much? And how recent this success? Not only in Abbey Forum, but even more so in Abbey Successes Forum.

 

Abbey are greedy buggers, want as much as possible, and they talk tough. But it is their actions which count, and the timing of their strategy swithch, if they have made one or are about to make one.

 

GL.


 

 

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Sorry, I don't agree at all with the "type 1" and "type 2" definitions. In fact IMO its nonsence.

 

Clearly its your claim, Adam, and you can conduct it how you wish, but there is no way I would advise you to split your claim in the manner your propose, nor would I do so myself.

 

The bank impose a limit on any overdraft which is an express term of the agreement. To exceed this limit would once have been explicitly described as a breach in the T&C's, but in recent times the banks have manouvred the wording to present the events leading to a charge as "allowing" a customer to exceed a limit, rather than be breaching the agreement in exceeding it. Despite the banks attempt to "cloak" the penalties as services, when you exceed your OD limit you are breaching the express term of the contract which says you're limit is £XXX. The definition of limit is -

 

"point beyond which something does not or may not pass"

 

The existance of a breach is supported by the use of the words "authorised" and "unauthorised" borrowing, plus the card T&C's which state you have broken your agreement if you use your card to create an unnarranged OD.

 

Notwithstanding the above, even if the court found no breach, the penalty provisions would still apply regardless.

 

In Dunlop Pneumatic Tyre co Ltd v New Garage [1915] AC 79, Lord Dunedin stated;

whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was todeter a party from breaking the contract or to compensate the innocent party for breach.

In Bridge v Campbell Discount[1962] A.C. 600, Lord Devlin stated;

It is well settled that, when a court of law finds that the words which the parties have used in a written agreement are not genuine and are not designed to express the real nature of the transaction but for some ulterior purpose to disguise it, the court will go behind the sham front and get at the reality

 

Therefore, a clause aimed at securing the performance of a contract should be treated as a penalty whether or not it is expressed in terms of a fee payable happening on an event other than breach - for instance a "service".

 

This was re-inforced by the various OFT reports which predicted the banks would attempt to disguise their charges, and warned against them doing so. See the "Disguised Penalties" section of the report quoted in the "Court date....." thread in the stickies.

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Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Adam,

 

Lloyds appear to have made a policy switch. Before April they fought nobody. Now they have fought twice and won twice, and making ever more threatening noises. Before April was the time to reclaim, but now that chance is gone.

No, sorry that is completely and utterly wrong. In fact I would even go so far as to say its scaremongering.

 

They are not making "threatening noises" to defend claims.

 

They defended one. By accident. They won it becouse the claimant did not demonstrate a breach of contract. He was not adequately prepared with the arguements or evidence necessary to demonstrate a breach and win the claim.

 

The parties were given the draft of the judgement 4 weeks before it was in the public domain. In other words, Lloyds have known about their "victory" for around 2 months but have still paid every claim since.

 

The other loss was solely becouse the claimant submitted pathetic POC's, and further, did not turn up in court.


Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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.....Lloyds have known about their "victory" for around 2 months but have still paid every claim since.

...../quote]

 

This new information is interesting for those who choose to rely on it.


 

 

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Many thanks for these replies, Gary - hugely appreciated especially given the great demands on your time at present. They certainly give a very useful and balancing view to those previously expressed.

 

I still wonder though if offering to make a very small reduction on the original claim, by sticking to only 'straight refusal' charges to which I can see no defence as they are in return for no service from the bank at all and can be implied to be straight penalties imposed for just asking for a service, might ease the process of the claim. This would also look good in Court, if done with no 'Without Prejudice' statement, as a genuine attempt to settle without using any more of the Court's time.

 

Once again, many thanks - Adam


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Adam,

 

I can only repeat what I've already posted - there is no differentiation whatsoever between "type 1" and "type 2" charges. The notion that there is is flawed. They both amount to penalties and can be demonstrated as such.

 

For instance, the bank could argue that straight refusal charges were considered before they were refused, and the considering is the service.

 

There is no difference between allowing a limit to be passed and not allowing it to be passed. In fact if anything its the other way around. Them "allowing" you to exceed your limit is more easily argued as a breach, therefore a penalty, than a straight refusal!

 

There is no "Lloyds current thinking" and again I've posted why above.

 

Lloyds thinking is the same as it always has been - to stall and frustrate for as long as possible before paying at the last minute. Its as simple as that, and nothing has changed since Berwick.

 

Lloyds will not respond if you drop the amount, although of course its your claim and you can conduct it how you wish.

 

As for Abbey - the "type 1" and "type 2" theory is even more flawed becouse Abbey do not even deny a breach of contract. The cost of them allowing you to exceed your limit is negligable and if the charge exceeds the cost then the charge is a penalty.


Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Thanks again, Gary. Fully understood

 

Adam.


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Just subscribing

 

Els


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

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Hi Els

 

Thanks for taking an interest in the discussions on my thread. Gary makes some very strong points, which have helped greatly to clarify my thinking on all of this, and hopefully that of others. Its always good to have a debate on these things rather than having just one point of view! After all, is that not what CAG, at least in part, is about?

 

Would be interested to know if you have any views on all of this? Especially so on the issue of offering the bank, or their Solicitors, a small reduction in claim as a genuine attempt to achieve a settlement which avoids expending any more of the Court's, or their, valuable time, and would avoid the need for submission of vast quantities of paper by both sides. Surely this would look good in the eyes of the Court as well?

 

All the best - Adam


I do my best to be helpful, but at the end of the day I'm not a professional - please seek further advice if you're not sure. On the other hand, if I have helped, please click my scales - thanks ;)

 

Current Claims (all for friends!) -

 

Abbey - over £4k - Court claim issued & AQ filed ('Tish vs Abbey'). Alloc'n Hearing 21 Sept - Claim stayed 29/8/07.

Cap One - just under £2k - WON (just over 2k!)('Tish vs Cap One')

Cap One - just under £1000 - WON (just over £1k) Nov 07 (JimmyBoy vs Cap One)

Lloyds TSB - £3.5k - Court claim issued, defence rec'd and AQ filed; Alloc'n hearing 7th Sept Claim stayed 29/8/07! (JimmyBoy vs Lloyds')

MBNA - over £1k for mis-sold PPI - WON - approx £1500(IpswichWitch vs MBNA . . .)

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Hello Adam.

 

I’m afraid I’m an old cynic when it comes to banks and their antics. As far as I’m concerned the only thing that motivates banks is profit and the protection of it. When faced with claims, which they are not prepared to defend in court, there only concern is ‘damage limitation’. To get away with forking out as little as possible. Hence the delays, obstructions, intimidation, harassment and, sometimes, untruths.

 

Conversely, don’t expect your offer of a reduction in claim amount to make the slightest bit of difference. They would much rather you gave up and went away altogether (or submit a duff claim, thus allowing a judge to find against you!). If you have entered a cogent claim and you push them to the brink, they will cough up. The only advantage an offer of reduction would confer, would be to make you look good in the court’s eyes. But that will only be valid if the case gets to court and, even then, it would be a side issue. So, please don’t think they’ll fall over themselves to pay you, just because you’ve reduced your claim.

 

I don’t agree with the concept of ‘Type 1’ and ‘Type 2’ charges. If you know that the majority of your claim is for ‘Type 1’ charges, which LTSB will apparently readily concede, why omit the ‘Type 2’ charges? LTSB will surely not want to come to court to fight for what is, to them, a paltry sum.

 

Nor do I agree that LTSB have fought twice and won twice. Yes, they have ‘won’ twice, but they haven’t ‘fought’ at all. They have ‘won’ virtually by default. In one case the claimant failed to make his case properly. In the other, the claimant couldn’t be bothered to turn up! LTSB did nothing proactively to affect the judgment in either case.

 

So, I completely agree with Gary, nothing has changed..

 

Prepare your case carefully, understand the issues and expect to go to court to argue your case. Try to be patient. Don’t waver. That way you’ll win, as many others have done.

 

Els.

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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

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