Bank Refunds/ Court action

[superfly6973]

Hi,

 

Does anybody know if banks still have the authority to charge a customer a 30.00 bank fee if the account is o/d by a few pence, the problem I have at the moment is that my debit card allowed me to go o/d by a few pence and the bank slapped a 30.00 charge on the account. I am correct in thinking that I will need to amend my bank claim before it goes to court to recover this cost. The bank refuses to consider waiving the charge has anyone eles had this problem before

[saintly_1]

Yes they can charge you the minute that you go over your OD limit just add the new charge onto your schedule of charges prior to filing at court

[Russjo]

Include it in your claim. That is ridiculous that they've charged you £30 for a few pence and not agree to waiver it, how unreasonable. I'd like to see them argue that away as a service fee

[saintly_1]

By the way can you please just stick to 1 thread in each forum you are in thanx

[superfly6973]

I just had the 'Notice of transfer proceedings' through from the court, I am also had the banks defence and am concerned that the bank says that 'there is no breach of contact the charge cannot be a penalty, ect and 'the charges relate to a price payable for a service', is this standard pratice of the TSB bank can anyone advise?. I also would like what sections of the court bundle is revelant when sending back a defence.

 

Thanks

[Russjo]

I think you need some help here because this is the reason why they have won a couple of cases. You need to prove that you have breached a contract so hopefully this will bump you to the top and saintly will pick you up again

[superfly6973]

Thanks for the adivce but I am not sure how you prove this point 'breach of contact' in court, does this apply only if you go over an o/d? without their agreement and then they charge a bank fee?

or if the bank rejects a d/d you are charged.

[superfly6973]

Hi Saintly1,

 

Can you advise on what you mean the following quote

We need your litigation details

We are looking for any Terms & Conditions.

[saintly_1]

once you get a court date ......

let a mod or site helper know the details

Bank

Claim number

amount

date

concluded (Y/N)

 

Also the site needs any T&C's that anyone can find

[saintly_1]

Can you type out the points of the defence that relate to the breech of contract ?

[superfly6973]

Hi Saintly1,

 

please see sections of the TSB defence

 

5) There is no breach of contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge can be pre-estimated of the bank loss.

 

7) The charges are terms which relate to the price payable by the customer for a service provided by the bank and pursant to regulation 6 of the unfair terms in consumer contract regulations 1999, are not subject to the assessment of fairness.

 

8.2) the charges are for bank services, and are not damages nor penalty

 

8.3) it is denied that the charges are unlawful or contravene and statute or regulation.

[saintly_1]

This is the first time i have seen these points in a Barclays defence

[Russjo]

It's Lloyds TSB Saintly

[superfly6973]

can anybody advise?

[saintly_1]

Why is he asking in the barclays forum then !!!!!

[superfly6973]

Sorry I should have been clearer this is TSB bank I don't know if barclays submit a different defence either way can you advise please?

[Russjo]

The threads were merged and I think that's where the confusion came in

 

Correction they weren't merged

[Russjo]

Superfly,

You need to post information regarding your Barclays claim on this thread and then any questions you have regarding your TSB claim, you should post in the LTSB forum. That way it will avoid confusion

Jo

[superfly6973]

Thanks the information

[Russjo]

That's okay, I know it's all a bit confusing, took me a number of attempts to get used to all this and now I'm completely addicted

[Pamneil4343]

Hi there,

Back last year I was very successful and got paid our by Halifax very quickly, however, even though they have moved the goal-posts, I persuaded my step-daughter to persue her claim and due to delays (since Dec she didn't have enough money to pay MCOL) in completing forms it has only just gone through MCOL 18/05/07. Now I've seen a link that states that one can have a refund of the fees under certain circumstances!!! So I am persuing that as well.

Barclays have defended it and it has been trasferred from MCOL Nottingham to Portsmouth CC, clerk there says the court dates at the moment will be around October 07. I am just about to post off copies of letters and list of charges, Barclays defence says they haven't had them!!! to court, bank (again) and their litigation department. I'll let you know how we get on, ok.

Pam

Here is there defence as per their defence and counterclaim.

3. Defence

• The particulars of Claim do not provide details or particulars of the account in question and / or the precise charges alleged to have been unlawful, or the date thereof. Furthermore, they give no recognisable cause of action, nor is there sufficient material to enable Barclays to serve more than a bare denial of liability as a Defence. The statement of Case would appear to be an abuse of process and / or will obstruct the just disposal of the proceedings and it does not appear to comply with CPR r16.2.
  
• The defendant respectfully requests an order that the claim be struck out pursuant to CPR 33.4 as it does not disclose reasonable grounds for bringing a claim and is an abuse of the Court’s process
  
• If an order to strike out is nor considered to be appropriate, to the extent it is alleged that the Claimant incurred bank charges on the Claimant’s account for unauthorised borrowings (whether unpaid fees for returned cheques, “Paid Referral fees” or any other such fees), the Defendant puts the Claimant to strict proof of each charge and the date thereof.
  
• The particulars of Claim are summary in nature. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.
  
• The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The Claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised) :

• The Defendant’s right to charge a “Paid Referral Fee” where the Defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25).
  
• The Defendant’s right to charge an administration fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35 per item (previously £30)

c. The Defendant’s entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

• The Defendant’s standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds the authorised overdraft limit).
  
• If and to the extent it is the Claimant’s case that the failure to make necessary payments and / or failure to remain within authorised overdraft limits and / or failure to arrange an authorised overdraft constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant’s account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of the account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft.
  
• Accordingly, it is denied that the legal principle relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999, or are in breach of the Unfair (Contracts) Terms Act 1977 ( or any other provision).
  
• Therefore, it is denied that the charges were unlawfully debited from the account.
  
• If an to the extent the Claimant incurred charges on the account, this was caused by the Claimant have gone into overdraft without having agreed with the Defendant an authorised overdraft facility or to increase the overdraft facility and / or the failure to make payments to bring the balance of the account back into credit.
  
• It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same.
  
• The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 21 May 2001 are not recoverable because they are time-barred under the terms of the limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action.
  
• In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest of any party thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the charges were a consequence of the breach of contract by the Claimants, the Defendant has nonetheless suffered loss and damage as a consequence of such breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.