mcuth v RBoS ***WON***

[mcuth]

Edit: Removed my next letter as I'm reconsidering the wording until I can get an ink cartridge!

 

Cheers

 

Michael

[mcuth]

Ok, got my ink cartridge this morning, so here's my next letter - it includes a one-time offer, just cos I feel the season of goodwill coming up

 

Dear Mr McLean

CURRENT ACCOUNT NUMBER XXXXXXXX : SORT CODE XX-XX-XX

Your ref: XXXX

Thank you for your letter of 21st November 2006, received last Thusday.

As you are no doubt aware from our previous correspondence, the amount in dispute is £2,711.38 (being £2,470.00 in charges, plus £241.38 in overdraft interest) and I am claiming Contractual Interest, under the principle of mutuality and reciprocity in our contract, at RBoS’ unauthorised borrowing rate of 29.84%. The Contractual Interest element at today’s date is £14,967.76. The grand total of the above is £17,679.13 and once again, for your information I have enclosed schedules of these charges & interest calculations.

Whilst I appreciate your offer of £2,711.00 credited to the above account in full & final settlement of this action, once again, regretfully I cannot accept it on the terms that you have outlined. I would, however, be prepared to accept it as a partial settlement, on an unconditional basis and paid directly to me by cheque.

Immediate full & final settlement of this action can be achieved in either of the following ways:

i) A cheque for £17,679.13 being issued directly to me; or

ii) An offset repayment of my other indebtedness to RBoS – with written confirmation of the same & closure statements from yourselves & Westcot Credit:

Loan account XX-XX-XX/XXXXXXXX – £5,461.17 (confirmed by Westcot on 23/10/06)

Credit card account XXXXXXXXXXXXXXXX - £1,226.31 (confirmed by Westcot on 23/10/06)

This would result in a cheque being issued directly to me in the sum of £11,582.45 (being £17,679.13 minus £5,461.17 minus £1,226.31 plus £590.80, the current balance of account XX-XX-XX/XXXXXXXX)

However, as a one-time gesture of goodwill on my part to show that I am reasonable, flexible and willing to settle this matter without the need for court action, at this time I am prepared to agree to a reduction on the amounts shown in the above scenarios:

i) I would be willing to accept a cheque for £14,500 in full & final settlement

ii) After the repayment offset with the same confirmations as above, a cheque for £7,500 in full & final settlement

To enable you to fully reconsider my claim, I am prepared to allow an extension to previous timescales and will give you until Wednesday 6th December 2006. At this deadline, the offer above shall expire, and I shall begin a County Court claim against RBoS without further notice for the full amount, plus accrued interest at time of issue, plus my costs.

Yours sincerely,

 

{mcuth}

 

Cheers

 

Michael

[peter201177]

Hi Mcuth,

 

Any update on your situation?

 

Am waiting for the outcome of this one with baited breath.......

[mcuth]

Nothing received from RBoS - am just preparing my PoC so I can go issue an N1 - likely tomorrow. Already got some 70+ pages attached in statements & charge schedules

 

BTW Peter, I wouldn't hold your breath awaiting the outcome - you're likely to turn blue waaaay earlier than there'll be a settlement Am fully prepared for the long haul on this one!

 

Cheers

 

Michael

[paulwlton]

Hi mcuth,

 

Have you a link to how you work out the contractual compound interest the previous link is not working, i will use this on my next claim.

 

Paul.

[mcuth]

Hi Paul

Have you a link to how you work out the contractual compound interest the previous link is not working, i will use this on my next claim.

 

I used Mindzai's excellent spreadsheet - he's currently on v1.8, but the link changes when he updates it. Best following the link in his sig, which you can view from his profile page

 

HTH

 

Cheers

 

Michael

[paulwlton]

Thanks for that, i'll have a play with it later.

[mcuth]

Well, here we go then, I've just been down to the court to get the following submitted....

 

Here's what I put in the N1:

"Brief details of claim"

The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.

 

"Value"

Penalty charges in the sum of £2,470.00 and overdraft interest charged thereon in the sum of £241.38. Interest to be determined as the Court deems just, as per section 10 of the attached Particulars of Claim, with the maximum to not exceed £15,184.30. A maximum total of £17,895.68

Plus any applicable Court fees.

Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £2.22 per day or at such rate and for such periods as the Court deems just, according to section 10 of the attached Particulars of Claim.

Here are the PoC, in case anyone wants to use them later - they're printed on separate pages, and accompany the N1. Thanks to Bong & the big claim, which provided a lot of the basis for this :

 

IN THE SWINDON COUNTY COURT

IN THE CASE BETWEEN:

 

{mcuth}

CLAIMANT

 

 

 

- and -

 

 

 

 

The Royal Bank of Scotland PLC

DEFENDANT

 

 

 

 

 

 

 

 

Particulars of Claim

 

 

 

 

 

 

 

 

1. The Claimant has a Royalties Current Account, number XXXXXXXX (“the Account”), opened at the Defendant’s XXXXXXXXX branch (sort code XX-XX-XX) on or around XXth XXXXXXXX XXXX

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Card Misuse”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.

 

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

5. A schedule of the charges and overdraft interest applied is attached to these particulars of claim (Appendix 1), with copies of the 38 statement pages that itemise the charges and interest charged thereon.

 

6. The claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to account defaults

 

7. The claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current account agreements.

 

8. The Claimant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly

enrich the Defendant which exercises the contractual term in respect of such charges

with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

c) In the alternative to a) & b) above, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

9. The Limitation Act 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT’s report was published on 5th April 2006. The facts relevant to the Claimant’s right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without accountability to its customers, and to have consciously concealed the facts. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant’s bank account. The Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity.

 

b) In the alternative, the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

 

10. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is deemed as unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate advertised by the Defendant’s website, being 29.84% EAR. The Claimant understands that the unauthorised borrowing rate at the time of opening the account was actually over 33%, but believes that using the current rate gives a fair result.

 

d) In the alternative to c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s lowest current authorised borrowing rate for a Royalties account, advertised by the Defendant’s website, being 15.00% EAR.

 

e) In the alternative to c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Schedules of interest calculated and are attached to these Particulars of Claim as follows:

Appendix 2 – Compound interest calculated daily at an annual rate of 29.84%

Appendix 3 – Compound interest calculated daily at an annual rate of 15.00%

Appendix 4 – Simple interest as per s.69 of the County Courts Act 1984 at an annual rate

of 8.00%

Appendix 5 – Print of the Defendant’s website showing the current borrowing rates

(relevant paragraphs marked with an asterisk on pp2&3)

 

11. Accordingly, the claimant claims:

a) The return of the amounts debited between 21st January, 1999 and 14th December, 2006 in respect of charges in the sum of £2470.00, together with overdraft interest charged thereon in the sum of £241.38 – totalling £2,711.38

 

b) Any applicable Court fees

 

c) Compound interest at the contractual rate of 29.84% EAR from the date of each transaction to 14th December 2006 of £15,184.30, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £2.22

 

d) In the alternative to c), compound interest at the contractual rate of 15.00% EAR from the date of each transaction to 14th December 2006 of £14,269.06, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.11

 

e) In the alternative to c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 14th December 2006, of £1,551.15 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.59

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

Dated this 14th December, 2006

 

I believe that the facts stated in these particulars of claim are true.

 

 

Signed:

 

{mcuth}

Claimant

Wooo-hooo!

 

Cheers

 

Michael

[peter201177]

wow good luck mate, would love to see it come in for u..........

 

whats the banks potential next move me wonders?

[Guest bong]

excellent mcuth - but then you wouldn't expect me to say anything else really would you?

 

will be following your progress - did you see matheos' natwest defence in today to her 1990 claim?

[mcuth]

Hmmmph - I just noticed a problem in one of the formulae to work out the 15%, which brings that section down considerably. Since the claim isn't issued, and it doesn't affect the N1, hopefully should be able to chat with the court in the morning to pull the old PoC & change the spreadsheet printouts :o

 

Bong - having a look at matheos' defence later

 

Cheers

 

Michael

[mcuth]

Ok, N1 stays the same as:

"Brief details of claim"

The Claimant seeks the return of penalty charges and overdraft interest charged thereon, debited to the Claimant's bank account by the Defendant, and interest on these amounts as defined by the contract between the parties.

 

"Value"

Penalty charges in the sum of £2,470.00 and overdraft interest charged thereon in the sum of £241.38. Interest to be determined as the Court deems just, as per section 10 of the attached Particulars of Claim, with the maximum to not exceed £15,184.30. A maximum total of £17,895.68

Plus any applicable Court fees.

Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £2.22 per day or at such rate and for such periods as the Court deems just, according to section 10 of the attached Particulars of Claim.

 

But I've redone my spreadsheet (brings the 15% alternative down from £14,269.06 to £4,741.77) and took advantage of adding a couple of things into the PoC - here's the revised copy:

 

IN THE SWINDON COUNTY COURT

BETWEEN:

 

{mcuth}

CLAIMANT

 

 

 

- and -

 

 

 

 

The Royal Bank of Scotland PLC

DEFENDANT

 

 

 

 

 

 

 

 

Particulars of Claim

 

 

 

 

 

 

 

1. The Claimant has a Royalties Current Account, number XXXXXXXX (“the Account”), opened at the Defendant’s XXXXXXX branch (sort code XX-XX-XX) on or around XXth XXXXXXXX XXXX

 

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

 

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Card Misuse”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.

 

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

5. A schedule of the charges and overdraft interest applied is attached to these particulars of claim (Appendix 1), with copies of the 38 statement pages that itemise the charges and interest charged thereon.

 

6. The Claimant will rely on the Competition Commission’s report entitled “Northern Irish Personal Banking,” published on 20th October, 2006, as evidence that the Defendant is aware that the income derived from its default charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to Account defaults

 

7. The Claimant will further rely on the Office of Fair Trading’s (“the OFT”) statement of 5th April 2006 concerning default charges in credit card contracts, as the OFT’s recommendations regarding standard default terms in credit card contracts have wider implications, as regards bank current Account agreements.

 

8. The Claimant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly

enrich the Defendant which exercises the contractual term in respect of such charges

with a view to profit.

 

b) Further to 8.a), the charges debited to the Account are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

d) In the alternative to 8.a), b) and c), if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

9. The Limitation Act 1980

a) The Claimant seeks permission to proceed with the claim under section 32 (1)(b) Limitation Act 1980 on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimant’s right of action before the OFT’s report was published on 5th April 2006. The facts relevant to the Claimant’s right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without Accountability to its customers, and to have consciously concealed the facts. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant’s bank Account. The Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity.

 

b) In the alternative to 9.a), the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980 on the grounds that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April, 2006.

 

10. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is unauthorised borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorised borrowing rate advertised by the Defendant’s website, being 29.84% EAR. The Claimant understands that the unauthorised borrowing rate at the time of opening the Account was actually over 33%, but believes that using the current rate gives a fair result.

 

d) In the alternative to 10.c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorised borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s lowest current authorised borrowing rate for a Royalties Account, advertised by the Defendant’s website, being 15.00% EAR.

 

e) In the alternative to 10.c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Details of interest calculated & rates used are attached to these Particulars of Claim as follows:

Appendix 2 – Compound interest calculated daily at an annual rate of 29.84%

Appendix 3 – Compound interest calculated daily at an annual rate of 15.00%

Appendix 4 – Simple interest under s.69 of the County Courts Act 1984 at an annual rate

of 8.00%

Appendix 5 – Print of the Defendant’s website showing the current borrowing rates

(relevant paragraphs are marked with asterisks on pp2&3)

 

11. Accordingly, the Claimant claims:

a) The return of the amounts debited between 21st January, 1999 and 14th December, 2006 in respect of charges in the sum of £2470.00, together with overdraft interest charged thereon in the sum of £241.38 – totalling £2,711.38

 

b) Any applicable Court fees

 

c) Compound interest at the contractual rate of 29.84% EAR from the date of each transaction to 14th December 2006 of £15,184.30, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £2.22

 

d) In the alternative to 11.c), compound interest at the contractual rate of 15.00% EAR from the date of each transaction to 14th December 2006 of £4,741.77, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.11

 

e) In the alternative to 11.c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 14th December 2006, of £1,551.15 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.59

 

12. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

Dated this 14th December, 2006

 

I believe that the facts stated in these particulars of claim are true.

 

 

Signed:

 

{mcuth}

Claimant

Let's hope the court will be able to sort it in the morning

 

Cheers

 

Michael

[Matheos95]

Checking in wow i like your style nice letters and nice PoC's got everything crossed for you.

 

Cheers

 

Helen

[mcuth]

Thanks Helen

 

Rang the court this morning & although they'd issued the claim this morning (my remission claim must've been accepted) & given it a claim number, they hadn't yet put it "on the system". They accepted me substituting the old PoC & Appendix 3 with my new PoC & Appendix 3 - bring it on

 

BTW Mr McLean, if you're watching - this is what happens when you don't respond to my rather generous offers

 

Cheers

 

Michael

[bill-k]

I Will be watching this.

 

Really WIZARD stuff, Michael.

 

Hey, Tommy - this guy sure plays a mean pinball !!

[Matheos95]

I Will be watching this.

 

Really WIZARD stuff, Michael.

 

Hey, Tommy - this guy sure plays a mean pinball !!

 

Dont he just lol

 

RBoS have failed to comply with my CCA request and as today they are now committing a criminal offence - not sure how I am going to tackle this one but am awaiting for a call from my local trading standrads hehehe

[mcuth]

I Will be watching this.

 

Really WIZARD stuff, Michael.

 

Hey, Tommy - this guy sure plays a mean pinball !!

 

*GROAN*

Thanks Bill - I think I'm lining all my little ducks up in a row ready for the New Year

 

Helen - only thing I'm doing with s77/78 CCA is not paying them anymore & reporting them to TS, can't be bothered with doing any more

 

Cheers

 

Michael

[livelylad]

Excellent POC Michael I think i will have to borrow it Just a quick question I thought that RBS auth borrowing rate was 16.9%

[mcuth]

Excellent POC Michael I think i will have to borrow it

 

Thanks & you're welcome to

 

Just a quick question I thought that RBS auth borrowing rate was 16.9%

 

Depends on what type of account you have, and the amounts involved (see here) - my account is/was a Royalties one. So that the judge can see I'm being fair in my calculations (i.e. to take account of rate & balance changes over the years), I chose the lowest applicable curent rate for a Royalties account:

 

Royalties + £5,000 1.17 15.00

£1,000 - £4,999 1.29 16.60 Below £1,000 1.32 17.00

 

Cheers

 

Michael

[livelylad]

Thanks Michael, I am going to stick with the 16.9% let battle commence over to you Tommy.

[mcuth]

Thanks Michael, I am going to stick with the 16.9% let battle commence over to you Tommy.

 

Where do you get the 16.9% from BTW?

Such a shame that Tommy won't get to see the claims across his desk after all his letters (though he never replied to my last one), what with him being in Scotland and all that

 

Cheers

 

Michael

[livelylad]

Thats the rate my branch quoted me, Is it incorrect. I thought Tommy would get a site when they request all the Information from him. Anyway Tommy Merry Christmas and a Prosperous New Year, no not for you for your dissatisfied customers.

[mcuth]

Thats the rate my branch quoted me, Is it incorrect.

 

Dunno whether it's incorrect or not mate, I just can't see a 16.9% on the RBoS rates & charges page

 

I thought Tommy would get a site when they request all the Information from him. Anyway Merry Christmas and a Prosperous New Year, no not for you for your dissatisfied customers.

 

I should imagine that they'd just look on their system for previous communications and go off whatever notes he's left

 

(LOL @ the greeting )

 

Cheers

 

Michael

[livelylad]

Bowed to your Knowledge mate and amended to 15%, Thinking of phoning Bolton branch and asking why they quoted me 16.9%. Customer care my arse.

 

As of todays date my compounded total is £22,293.26.

[mcuth]

Bowed to your Knowledge mate and amended to 15%,

 

I'd print that page out too - think their rates are changing in the new year.

 

Thinking of phoning Bolton branch and asking why they quoted me 16.9%. Customer care my arse.

 

 

As of todays date my compounded total is £22,293.26.

 

[THUD]

 

Cheers

 

Michael