Olden v Barclays Bank

[tezl]

hi val,

most of us seem to be fighting against the basic rules of finance,to earn more than you spend.robbing peter to pay paul.

being in this position any advice given would sound like a interview with a bank manager,we know what they would say.no pain no gain.

wish i had the magic formula,i would become a very rich honest financial advisor.

not to be flippant...,restructure.., is the word your after,how is up to your circumstances.

tez

[olden]

What do you think of the attack on the MSE site? the underhand lengths some people will go to they must be really desperate to stop the underdog getting justice.

[tezl]

tell more inderdog

[olden]

OK tez Am I allowed to paste something from over there to over here, for the people who want to know but may be too laaaaaaaaaaa ytired to go and look?

[tezl]

dont know where to look,million threads

[olden]

IN the mean time read this lot? this is what Jessica Morden MP sent me.

 

 

For information. Good to speak to you and I will be in touch.

 

________________________________

 

From: Jon Gardner [mailto:[email protected]]

Sent: Mon 10/29/2007 6:25 PM

To: MORDEN, Jessica

Subject: BANK CHARGES NEWS UPDATE FOR MPs

 

 

 

>

29 October 2007

 

 

 

Dear Member of Parliament

 

 

BA > NK CHARGES WAIVER UNFAIR, & TEST CASE A WASTE OF TIME

 

Firstly I would like to thank the many MPs who acknowledged and responded to my last letter about the unfair Waiver on Bank Charges compensation cases, and to those of you who have taken the time to make detailed representations to the FSA and FOS.

 

We are receiving cross party support for this issue, and as no other organisation seems to be lobbying on behalf of the consumer, I am writing to keep you posted on developments.

 

The original FSA review period on the Waiver passed at the end of September. There has been no mention of this since - either in the media or on the FSA's website. We have since discovered that hidden away in paragraph 43 of the FSA memorandum 'Recent Turbulence in Global Financial Markets and Northern Rock's Liquidity Crisis' (addressed to the Treasury Committee, dated 5 October 2007), that it will be reviewed at the end of this month. The initial two month review period has effectively come and gone without comment. When questioned directly, the FSA have said "there is nothing to comment on".

 

As it appears that some decision or 'non-decision' is likely from the FSA at the end of this month, it is vital that your constituents are represented. Without urgent pressure from MPs, we feel that this subject will be brushed under the carpet leaving millions of consumers short-changed and in limbo for three years or more.

 

The Waiver is in our opinion completely skewed in favour of the Banks and it should be withdrawn immediately in the interests of consumer fairness.

 

Furthermore, the Test Case which most people think will bring about a decision on unlawful bank charges is unlikely to do so, and we feel it is a complete waste of time. It is highly unlikely that any decision will be reached under the current legal framework for up to three years, or more. Please find attached our detailed press release on this issue of the Test Case , which is going on full circulation to the national media.

 

I would be pleased to meet with you in London or Manchester to discuss this serious issue affecting thousands of your constituents.

 

Please do not hesitate to contact me direct on 0161 926 2579 or e-mail me on [email protected]

 

You can write to me at

 

Brunel Franklin & Company Limited

7th Floor, Station House

Stamford New Road

Altrincham

Cheshire

WA14 1EP

 

Yours sincerely

 

Anthony M Sultan

Managing Director, BrunelFranklin.com

Executive Committee Member - Claims Standards Council

 

-------

 

Issued on behalf of BrunelFranklin.com "BANK CHARGES TEST CASE A COMPLETE WASTE OF TIME"

 

Millions of consumers could be fobbed off for three years or more

 

BrunelFranklin.com, one of the largest regulated claims management companies in the UK, has serious concerns that consumers are again being badly short-changed and misled by the financial services sector. BrunelFranklin.com is of the firm view that the recent OFT Agreement leading to a Waiver on Bank Charges cases and a Stay on related Court proceedings is totally against the consumer interest. In reality, it could be more than three years until consumers know where they stand.

 

BrunelFranklin believes that just like the Governor of the Bank of England was recently called to account by the Treasury Select Committee, the Public Administration Committee should be appointed to review the conduct of both the OFT, the FSA and FOS in this matter. These views are echoed by other leading players in the claims sector, including specialist solicitors Miller Gardner Solicitors.

 

BrunelFranklin.com believes that the public do not understand the very limited nature of the Bank Charges Test Case because it only seeks to deal with certain preliminary issues, and is not structured so as to deal with the issue of whether excessive Bank Charges are lawful or not. The net result is that it could be years before there is clarity on where people stand with their bank charges.

 

Anthony M Sultan, managing director of BrunelFranklin.com, said: "The Test Case has been brought by the OFT in its capacity as Regulator, and supported by The FSA. The OFT is concerned primarily with the application of the Unfair Terms in Consumer Contracts Regulations 1999 which deals with the question of fairness. The Test Case seeks to determine whether the Regulations apply to bank charges or not. The OFT believes that the Regulations apply, and the Banks believe they are exempt from the Regulations. Therefore, in itself, the question of whether or not the Regulations apply does nothing to resolve matters one way or another, whatever the outcome of the Test Case.

 

"Although well intentioned, the OFT Agreement has the effect of providing the Banks with a moratorium on repayments, and allows them to continue charging. It is well known that until the Agreement was concluded at the end of this year, Banks were voluntarily refunding 100% of such charges when faced with Court proceedings. In hiding behind the Waiver, the banks will save an estimated £500m on claims they would have been paying out, this year alone.

 

"It is difficult not to draw an inference that the Banks must feel their position is in serious jeopardy, and they are stringing the public along for as long as they can.

 

"We have written to the FSA and FOS in the strongest possible terms, outlining we feel the Waiver is so one sided in favour of the Banks and should be withdrawn immediately. Furthermore, we are involved with ongoing briefings with a number of MPs across all parties who agree with our

stance."

 

Rodney Gardner, director of Miller Gardner Solicitors, says: "Whilst the OFT proceedings allow the OFT to seek an injunction and to consider the position on penalty charges at common law, it does appear that the law of unintended consequences has given the Banks an unexpected windfall in freezing complaints; this has resulted in Court actions being Stayed, and Banks being allowed to continue making excessive - and in some cases increased - charges in the interim. The Banks are cock a hoop at the negotiated deal that can only be bad news for consumers."

 

Whilst in the very long run the OFT Agreement may eventually claim to champion the consumers' corner, in the short-medium term of 1-3 years it has done exactly the opposite.

 

Anthony M Sultan concludes: "Hundreds of thousands of Bank Charges claims have been submitted over the past 12 months. It was open to any Bank, at any stage, to allow Courts to adjudicate on the common law position regarding penalties not least, as well as the Regulations. Had this taken place, appeals to the High Court could have been dealt with by now and the law clarified. The OFT, FSA and FOS between them have done nothing to accelerate the process, indeed they have in fact exacerbated the situation; one can only assume that this is because they are protecting the Banks that fund their existence."

ENDS

 

Notes to editors

The legal arguments

If the Regulations (Unfair Terms in Consumer Contracts Regulations 1999) do not apply, it does not mean that such charges are lawful - because the common law position that has been adopted on behalf of bank customers in Court claims to date, is that the Banks, irrespective of the Regulations, cannot charge the customer more than the actual cost incurred by the Bank as a

result of the default by the customer; i.e, going overdrawn without authority. In practice, the cost to the Bank is minimal, yet, typically £35 or more is debited to customers' accounts.

 

On the other hand, if the OFT obtains a positive ruling that the Regulations apply, it does not mean that the charges are unfair, as there would have to be a further hearing in such

circumstances, for the Courts to consider whether fairness does or does not apply. This is likely

to take a further period on top of the 12 months that has already been agreed as the initial term of the Waiver in the OFT Agreement. It should be noted that the initial review that the FSA promised after two months seems to have been totally ignored or forgotten by the FSA; the FSA has remained silent on this and not even bothered to comment on their website. The only reference that can be found to this is buried away in paragraph 43 of the memorandum 'Recent Turbulence in Global Financial Markets and Northern Rock's Liquidity Crisis' from the FSA to the Treasury Committee, dated 5 October 2007. The 2 month review has effectively come and gone without comment. When questioned directly, the FSA have said "there is nothing to comment on".

 

 

Hardship cases

Whilst the Agreement reuires banks to entertain hardship cases Rodney Gardner of Miller Gardner

Solicitors has confirmed that in practice Banks merely take advantage of the Stay and ignore matters.

One Miller Gardner client is currently owed more than £17,000 in bank charges deemed penalties, and notwithstanding the repossession of his house, the presentation of a Bankruptcy petition and legal proceedings being in train against him, the Bank refuses to negotiate or agree the case can go forward. These are apparently not sufficient grounds for a hardship case: "At the very least, I would have expected the Bank to pay out," says Rodney Gardner, "but instead it is seeking a Stay from the Courts, which I view as an utter disgrace".

 

Press contact

BeyondPR

www.beyondpr.co.uk

Mobile: 07930 697773

 

Issued on behalf of BrunelFranklin.com

"BANK CHARGES TEST CASE A COMPLETE WASTE OF TIME"

Millions ofconsumers could be fobbed off for three years or more

 

BrunelFranklin.com, one of the largest regulated claims management companies in the UK, has serious concerns that consumers are again being badly short-changed and misled by the financial services sector. BrunelFranklin.com is of the firm view that the recent OFT Agreement leading to a Waiver on Bank Charges cases and a Stay on related Court proceedings is totally against the consumer interest. In reality, it could be more than three years until consumers know where they stand.

 

BrunelFranklin believes that just like the Governor of the Bank of England was recently called to account by the Treasury Select Committee, the Public Administration Committee should be appointed to review the conduct of both the OFT, the FSA and FOS in this matter. These views are echoed by other leading players in the claims sector, including specialist solicitors Miller Gardner Solicitors.

 

BrunelFranklin.com believes that the public do not understand the very limited nature of the Bank Charges Test Case because it only seeks to deal with certain preliminary issues, and is not structured so as to deal with the issue of whether excessive Bank Charges are lawful or not. The net result is that it could be years before there is clarity on where people stand with their bank charges.

 

Anthony M Sultan, managing director of BrunelFranklin.com, said: "The Test Case has been brought by the OFT in its capacity as Regulator, and supported by The FSA. The OFT is concerned primarily with the application of the Unfair Terms in Consumer Contracts Regulations 1999 which deals with the question of fairness. The Test Case seeks to determine whether the Regulations apply to bank charges or not. The OFT believes that the Regulations apply, and the Banks believe they are exempt from the Regulations. Therefore, in itself, the question of whether or not the Regulations apply does nothing to resolve matters one way or another, whatever the outcome of the Test Case.

 

"Although well intentioned, the OFT Agreement has the effect of providing the Banks with a moratorium on repayments, and allows them to continue charging. It is well known that until the Agreement was concluded at the end of this year, Banks were voluntarily refunding 100% of such charges when faced with Court proceedings. In hiding behind the Waiver, the banks will save an estimated £500m on claims they would have been paying out, this year alone.

"It is difficult not to draw an inference that the Banks must feel their position is in serious jeopardy, and

they are stringing the public along for as long as they can.

 

"We have written to the FSA and FOS in the strongest possible terms, outlining we feel the Waiver is so one sided in favour of the Banks and should be withdrawn immediately. Furthermore, we are involved with ongoing briefings with a number of MPs across all parties who agree with our stance." …/cont

Rodney Gardner, director of Miller Gardner Solicitors, says: "Whilst the OFT proceedings allow the OFT to seek an injunction and to consider the position on penalty charges at common law, it does appear that the law of unintended consequences has given the Banks an unexpected windfall in freezing complaints; this has resulted in Court actions being Stayed, and Banks being allowed to continue making excessive - and in some cases increased – charges in the interim. The Banks are cock a hoop at the negotiated deal that can only be bad news for consumers."

 

Whilst in the very long run the OFT Agreement may eventually claim to champion the consumers’ corner, in the short-medium term of 1-3 years it has done exactly the opposite.

 

Anthony M Sultan concludes: "Hundreds of thousands of Bank Charges claims have been submitted over the past 12 months. It was open to any Bank, at any stage, to allow Courts to adjudicate on the common law position regarding penalties not least, as well as the Regulations. Had this taken place, appeals to the High Court could have been dealt with by now and the law clarified. The OFT, FSA and FOS between them have done nothing to accelerate the process, indeed they have in fact exacerbated the situation; one can only assume that this is because they are protecting the Banks that fund their existence."

ENDS

 

Notes to editors

 

The legal arguments

 

If the Regulations (Unfair Terms in Consumer Contracts Regulations 1999) do not apply, it does

not mean that such charges are lawful - because the common law position that has been adopted

on behalf of bank customers in Court claims to date, is that the Banks, irrespective of the

Regulations, cannot charge the customer more than the actual cost incurred by the Bank as a

result of the default by the customer; i.e, going overdrawn without authority. In practice, the cost

to the Bank is minimal, yet, typically £35 or more is debited to customers’ accounts.

 

On the other hand, if the OFT obtains a positive ruling that the Regulations apply, it does not

mean that the charges are unfair, as there would have to be a further hearing in such

circumstances, for the Courts to consider whether fairness does or does not apply. This is likely

to take a further period on top of the 12 months that has already been agreed as the initial term of

the Waiver in the OFT Agreement. It should be noted that the initial review that the FSA promised after two months seems to have been totally ignored or forgotten by the FSA; the FSA has remained silent on this and not even bothered to comment on their website. The only reference that can be found to this is buried away in paragraph 43 of the memorandum ‘Recent Turbulence in Global Financial Markets and Northern Rock’s Liquidity Crisis’ from the FSA to the Treasury Committee, dated 5 October 2007. The 2 month review has effectively come and gone without comment. When questioned directly, the FSA have said "there is nothing to comment on".

 

Hardship cases

Whilst the Agreement requires banks to entertain hardship cases Rodney Gardner of Miller Gardner

Solicitors has confirmed that in practice Banks merely take advantage of the Stay and ignore matters.

One Miller Gardner client is currently owed more than £17,000 in bank charges deemed penalties, and notwithstanding the repossession of his house, the presentation of a Bankruptcy petition and legal proceedings being in train against him, the Bank refuses to negotiate or agree the case can go forward. These are apparently not sufficient grounds for a hardship case: "At the very least, I would have expected the Bank to pay out," says Rodney Gardner, "but instead it is seeking a Stay from the Courts, which I view as an utter disgrace".

…/cont

Press contact

Jon Gardner

BeyondPR

Beyond - PR & Communications

Mobile: 07930 697773

 

 

 

Dear Member of Parliament

 

 

 

 

 

BANK CHARGES WAIVER UNFAIR, & TEST CASE A WASTE OF TIME

 

Firstly I would like to thank the many MPs who acknowledged and responded to my last letter about the unfair Waiver on Bank Charges compensation cases, and to those of you who have taken the time to make detailed representations to the FSA and FOS.

 

We are receiving cross party support for this issue, and as no other organisation seems to be lobbying on behalf of the consumer, I am writing to keep you posted on developments.

The original FSA review period on the Waiver passed at the end of September. There has been no mention of this since – either in the media or on the FSA’s website. We have since discovered that hidden away in paragraph 43 of the FSA memorandum ‘Recent Turbulence in Global Financial Markets and Northern Rock’s Liquidity Crisis’ (addressed to the Treasury Committee, dated 5 October 2007), that it will be reviewed at the end of this month. The initial two month review period has effectively come and gone without comment. When questioned directly, the FSA have said "there is nothing to comment on".

 

As it appears that some decision or ‘non-decision’ is likely from the FSA at the end of this month, it is vital that your constituents are represented. Without urgent pressure from MPs, we feel that this subject will be brushed under the carpet leaving millions of consumers short-changed and in limbo for three years or more.

 

The Waiver is in our opinion completely skewed in favour of the Banks and it should be withdrawn immediately in the interests of consumer fairness.

 

Furthermore, the Test Case which most people think will bring about a decision on unlawful bank charges is unlikely to do so, and we feel it is a complete waste of time. It is highly unlikely that any decision will be reached under the current legal framework for up to three years, or more. Please find attached our detailed press release on this issue of the Test Case , which is going on full circulation to the national media.

 

I would be pleased to meet with you in London or Manchester to discuss this serious issue affecting thousands of your constituents.

 

Please do not hesitate to contact me direct on 0161 926 2579 or e-mail me on [email protected]

 

 

Yours sincerely

 

 

 

Anthony M Sultan

Managing Director, BrunelFranklin.com

Executive Committee Member – Claims Standards Council

[olden]

dont know where to look,million threads

 

 

Hi Tez I am a bit afraid to put another long post over here, and I am too dull to know how to post a link?, but anyway if you do want to see it's on Martins Blog and the link there click DDOS (Distributed denial of service attack) and it tells all. val

[smutley]

MoneySavingExpert.com attacked: We’re fighting back. Don’t let them win....

 

try this link it should work

[smutley]

thats a fab fighting letter Val, I only wish we had that when we went to court, would have been great to have stood up and read it out to the judge. Nevertheless, I hope now that this gets an airing in parliament. I wonder if this was sent to all MPs .... think I will print out and send to my MP Julie Morgan for her to see. Well done Val, the fight is still on!

[smutley]

Hi Val,

 

Have you seen this posting on the general thread makes interesting reading and explains why b's not dealing with any hardship cases!

 

Funny enough a freind of mine has a work mate who has just got as response back from barclays i don't know him to well so couldn't really ask for a copy so i wrote down i paragraph which is very intresting

 

Quote

 

"i belive our obligations under the banking code may inadvertently have been misrepresented in the media and elsewhere. I apologise if you have received the impression that your financial hardship complaint is an alternative to your bank charges complaint as a methord of obtaining a refund of fees (and consiqently avoiding the current deferment arrangements)"

 

It also said "I wish to make it clear at the outset that you should not expect our proposals to include an offer of refund the bank charges you have incurred"

 

Then just dribbled on and said a member of the debt managment team will call him to see what the can do for him ie seeing CAB etc etc.

 

But looks like they are not going to be refunding any fees for financial hardship for anyone as this was a standard letter and i bet many Barclays members will be getting the same letters through now, it doesnt say its a final response but does say you can go to the ombudsman if you are not happy.

 

It will be nice to see when the OFT asks barclays how many financial hardship claims you have refunded and they say NONE!!!!

 

 

I Am sure what they are saying is a very strong statement as they are clearly saying they do not need to refund any charges because of financial hardship. So who is doing the misrepresentaition the Banks or the OFT????

 

If this is true then the waiver should not have included the financial hardship rule, it should of said they will still deal with hardship case's but will not have to refund any charges just pass you onto a debt management team member.

 

It will be intresting to see some views of the Alecm?? sorry bud, and CRFX250 etc on this

 

I told him to go to the ombudsman and also make a complaint to the FSA.

[tezl]

hi val,jenny,

the only ones who can decide is courts,

i think its the courts fault.

the courts should interprit hardship and let cases proceed to inevitable conclusion.

the banks are not going to admit that charges causes hardship,they think there fair.

and the banks pay the wages of regulaters.

so for me its courts fault.

tez

[olden]

Yes I have always said what I cannot understand is how the courts can be manipulated by anyone, how can the OFT FSA or Banks dictate proceedings to JUDGE? val

[tezl]

exactly.

thick as theives,comes to mind.

[olden]

As MACBOY says on the government are complicit in this. there is no way they are going to agree to lose billions of revenue from the banks is there.

[olden]

Hello all, I have just read this and was amazed that someone has just got their money back, in view of the waiver in full force, how did that happen? Isn't Scotland included in this waiver?

 

QUOTE:-

 

 

Hi there,

Just thought I would let anyone out there who think they are not getting anywhere with their claim know that after about 8 months our bank has finally paid out in full approx £8500 in charges.

We thought it would be harder for us in Scotland as the iaw is slightly different but we got it.

We wrote to the bank 3 times, then applied to the sheriff court for payment(£750 per claim because we are in Scotland). This was granted and the bank paid, then we applied for another £750 and the bank paid, when we applied for a third the bank said we had accepted the offer as full and final paymet(which we never) so we took it to the FO, then after acouple of months we got a letter from the FO saying the bank does not think these charges are un fair or un lawfull but to stop any investigation with the FO they agreed to pay us back the charges but they did not deduct the £1500 they had already paid us so it was win win for us. The bank was HBOS(bank of scotland).

So for anyone out there who are still trying keep going and you will win.

[smutley]

barclays were clever not having a head office in scotland.... When are you meeting with Jesica Val?

[olden]

Hi Jenny, Well I don't know, as she said she would be in touch with me but if I do not hear from her within a couple of weeks, then to contact her. So I will have to wait until she has found out more about who exactly is supporting this. Val

[smutley]

just been catching up on the MPs thread, think next week Ill write to Julie Morgan enclosing a copy of the correspondence you got from Jesica and also update her on what happended at our hearing... just to keep her in the picture, so to speak!

[olden]

Has anyone seen this article yet??

 

 

http://news.bbc.co.uk/1/hi/business/7069128.stm

[olden]

Hi anyone heard there is a programme on Friday about these charges on BBC it must be the one we were asked to give info and i never got a reply. worth watching?

[olden]

Hi All this is from the Penalty Charges site, Stephen Hone

 

LAST BIG NEWS

 

WATCH BBC2 ON FRIDAY THE 16TH MONEY PROGRAME 2007 GREAT UPDATE ON BANK CHARGES. Oh you get to see me and Angela Knight

[smutley]

wonder if the autocues will be running the template responses!! Oh I do hope that something positive comes out of this... do you know what time its on?

[olden]

Hi Jenny,

 

BBC2 7.00 RUN ON THE BANK :PENALTY PAIN

 

LIBBY POTTER INVESTIGATES THE ISSUE OF BANK PENALTY CHARGES. THE FINANCIAL INSTITUTIONS INSIST THEY ARE LEGAL, YET THEY CONTINUE TO PAY OUT MILLIONS OF POUNDS IN COMPENSATION.

[smutley]

thanks Val, I wonder if they will mention the OFT response to the banks defense... have you seen it, its posted up in the general thread

[olden]

Hi all Have you all seen the Martin Lewis protest song?