cary anne v barclaysc"WON"

[jansus]

Hi

 

I wish I could help you more but I am afraid I am not up on the area of your arguments - however I have been told that because of the agreement the banks should not be taking your cases to court in the first place please read this post - the links may be of interest . the FSA quote is just an extract from their website announcement - and the other link from CRFX250 who is posting on general as he is is pressurising FSA to lift the waiver. Also the last link to the A&L thread may be useful - it is one of the first times we have seen the FOS help on a case that was already started in the court system. I think from what I understand the courts feel they have no choice but to stay the cases - but at least there may now be an alternative route. But perhaps you can use these links to state that the banks are abusing the system. Best of luck and I hope someone more knowledgeable helps you soon.

 

JAN:)

 

It was part of the agreement between the FSA/OFT and the banks that although current claims would be "stayed" that "hardship " cases would be filtered through.

 

If you feel that SINCE THE WAIVER you have

1) appealed against a stay on this basis and been refused

 

(Just to clarify, the courts have a right to stay any case but banks should

not apply for a stay in cases of hardship.)

 

2) contacted your bank and asked to be considered on this basis and been refused

3) had been offered a settlement which has now been retracted

 

if you feel this applies to you please pm me or post details here. I am trying to help CRFX250 collect data to send to the FSA. He is trying to gather evidence in order to make them consider lifting the Waiver which is due for review.

 

Here is a link to the proceedure the banks were supposed to adhere to

 

http://www.fsa.gov.uk/pages/Doing/Re...ction_disp.pdf

 

And also an extract from the website announcement.

• Consumers who have received a final response from the bank/building society which does not include an offer
  Consumers still have the option of complaining to FOS. However, the banks and building societies have also requested that the FOS does not consider any complaints about unauthorised overdraft charges until resolution of the test case.
  
• Consumers who are in very difficult financial circumstances - 'hardship cases'
  Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.

__________________

 

This is also a useful thread to read Success at A and L via hardship case route

 

 

 

thanks

[jansus]

By the way in the cicumstances just remeber the judge is a human being too - he wont expect you to be a law expert.

 

just speak from the heart and do your best - you know why you dont want the case stayed - just tell him how you have been treated - and dont feel a failure if it does not work - he may have no choice anyway and feel he is staying it for your own good - but at least try to get the charges and any interest frozen if you can

 

Best of luck

 

~Jan

[carey anne]

Thanks for your help. I'll just give it my best shot. Thats interesting about A&L settling on grounds of hardship. I will mention to the judge that some cases have been settled since 27 July. Is CRFX250 the claim number at Cardiff court? as i want to be specific when i mention it. Obviously i hav'nt included this information in the bundle, will i be allowed to mention it or does everything need to be handed in that i plan to refer to?

 

Thanks

[steven4064]

CRFX250 is a user on this site

[jansus]

court stay lifted, new court date - must file a skeleton argument

 

 

This is an interesting post today ( last page above thread) but is not the same reaction as the A&L one ( annoyed from Caerphilly) as he was not told by FOS that hardship had to be caused by bank charges but only worsened -

 

Yes the above poster is correct CRFX250 is a poster on the site trying to pressurise FSA.

 

 

Poster on above thread may be worth speaking to as they were in court yesterday I think.

 

Jan

[carey anne]

hello

 

Just to keeep you informed, i went to the hearing on 15th to remove the stay. Although i have not had the response yet from the judge as he said he will contact everyone in writing with his views i am confident the stay will be allowed.

 

Before the judge heard my case of hardship he said his personal views on the matter were that if the stay was removed it would potentially have legal cost implications for the claimants and he also had a major issue with time. He said he is very doubtful that even if the stay was removed that any of the claimants in cases like this would receive their refunds any quicker than if we all just wait for the test case to be resolved. i thought this was odd as ive read the test case could go on as long as 6 years, i cant see why if the stay was removed it would take as long as 6 years to get a hearing date in the small claims court, especially since when i first submitted my original claim i had a hearing date within 3 months!!!!!

 

Basically i felt i was wasting my breath to even mention hardship. I stated according to FSA wauver the banks are reminded to deal with hardship cases in agreement with banking code. He said what waiver??? And then went on to say this doesnt really matter as Banking Code is voluntary.

 

I pointed out my parents sole income is benefits, DISABILITY benefits at that, & that the amount given by the gov is deemed to be the minimum amount a disabled person is required to live on, i then went on the say bank charges have DIRECTLY caused hardhip as they have left my parents with less than the minimum amount law says they need to live on so struggle is inevitable. I also stated they have been unable to meet other financial commitments as a result and received a REPOSSESION order in 2006. I also highlighted how the stay would result in further hardhip. I showed a financial statement (ioutgoings exceed income by £25 per month) and said that statement would balance if money was returned. This is because the charges have increased by mums mortgage debt by £3k and so her monthly payment is higher.

 

Despite all this info the Barclays solicitor said THIS IS NOT HARDSHIP!!!! I then asked for a definition of hardship according to Barclays and she said she didnt know, the jusge then said he couldnt answer either but said it was like an ELEPHANT!!!!! whatever that is supposed to mean. I again restated the facts i.e. claimants left with less than minimum amount a diabled person requires. The overall impression was that this is not hardship and yet no one could define it but hardship is soooo obvious it hits you like an elephant!

 

Oh forgot to mention the FIRST thing the solicitor said was that on 12Oct i was sent a letter offering a FULL refund of all charges and interest for one of my claims (had 3 in total). They even got this wrong tho, said would refund full £850 but as already refunded £250 would give £600. i never received £250!!!

 

The judge said well done to getting refund but the overall impression was that claimants may not get money back if stay removed anyway despite fact bank had just offered me £600.

 

Im disgusted that benefits recipients are treat like this, im going to write one more letter to the bank summarising this then im going to write to FSA (stating that no one is listening to the hardship element of their waiver), the FOS and im going to write to an MP, Im so annoyed banks dont excercise any consideration when applying these charges where only income is disability benefits i might write to a paper

 

Anyway sorry to waffle on for ages, thought someone may be interested. i doubt any stays will be removed at this rate

[jansus]

please see the announcement at the top of the forum _ if you feel it applies to you please email your details _ every bit of pressure helps

 

 

jan

[jansus]

also there is a suggested letter down on the section suuggestions for the website _ not approved yet only down there for discussion _ but the wording may be of interest>

jan

[slick132]

Hi Carey Anne,

 

I'm sorry to hear that your attempt to get stay lifted failed - you have to wonder what constitutes hardship, and whether anyone would actually recognise it.

 

Except, of course, we now know it's like an elephant - there, simple really !

 

Take care of your mum and try not to let this get you down.

 

Slick

[tezl]

hi,

didnt feel it was appropriate to comment a week or so back,,with your very unfortunate situation.must be horendous and now this.

hope im not out of place posting.its meant to support you.

 

frustrating dosent come close.

if ever there were a reason for a big wig from the consumer sites to get involved this must be it.

to get answers from these people who fobbed us off with hardship rubbish,only to calm the waters,

they had to say something after capitulating to banks.

what chance the big case if this is anything to go by.

they couldnt even get simple guide lines to follow,re,hardship,dose any one know what constitutes hardship?.no.!

do what you feel is right for you and yours.

personally i would ring up a paper who deals with finance eg,mail ?

they would know these people in f s a,and might also get statement from a caring bank.ha ha they might want to know,they may not,

all the best tez

[jansus]

I quite agree - there was press release yesterday where they had their hands slapped over using the waiver for credit card claims to which it does not apply - but this to me is worse. The banking code may be voluntary and the hardhship clause ambiguous - but the whole point I thought of the waiver to be granted was that they signed up to an agreement and they have breached it. I understand there is another case coming to court around 25th Oct where the stay has been lifted and the banks are trying to get it re-instated and they are bringing in big guns to do it. They are obviuosly determined to keep these cases under control at all costs. If you are not successful then when you hear then I agree you should pm a mod to try and get some help and also try the FOS as they now will get involved even if you have a court case going. And publicity may help but then that might put added presure on you as well having all your details splashed across a paper.

 

Take a deep breath and then shout for helpif you need it.

 

We may not be experts but we will do what we can

 

Jan

[carey anne]

Thank you everyone for your help

 

I'm going to write to the bank and FSA etc and when i have a response i'll think about the papers. This is more about the principle than the money, the money undoubtedly would help my mum but the banks need to recognise disability when applying charges. Such people dont have a means of boosting their income and so are bound to struggle as a result.

i think the media would be intersted in this, im not sure but i havnt seen in the paper how charges in particular affect disabled people.

 

The whole thing is exhausting really, i dont want my mum in the paper either but i want to see this issue addressed. Anyway im writing to the bank again this week so i will keep you posted on any reply

 

Thanks again, this site/people who use it are a real help

[jansus]

Hi

Just wondering how you are?

 

Jan

[carey anne]

Hi Jan

 

Well i've had no response from the judge about the removal of the stay!! I've just sent a letter to the bank asking for a refund based on hardship, ive informed them if they fail to reply within 14 days i will be contacting all the national newspapers. I have no choice but to contact the press as my mother will loose her home in the near furture if we dont get that money back.

 

Ive informed the bank i will be informing the press of Barclays disregard for the banking code and the repeat application of charges to individuals whose sole income is disability. I know charges have been covered in the media, but they may be interested in the fact that despite the FSA waiver reference to hardship, cases like ours are not being dealt with.

 

I'm just waiting for a reply now, i really hope they give my mum the money back,it could help her keep the home, she's lived there for 21 years and obviously it would be hard for her to loose that aswell as her husband

 

I havent looked on this site for a few weeks now, have many hardship cases had the stay removed yet?

[jansus]

unfortunately the news in that respect is not good - even where the stays have been lifted - when the banks have appealed they have gone back on - thats why some people are turning to the FOS rather than the courts.

 

In General forum there is a thread about Barclays stating in writing that the words in the waiver agreement have been misinterpreted - and there are some interesting comments Barclays Rubbish the

 

 

 

 

Jan

[jansus]

Hi have a look at this website Website of the UK government : Directgov and put in mortgage arrears as a search - there is lots of help as to what your rights are and a pdf leaflet from the FSA.

 

Jan

[jansus]

I hope you copy all letters to the FOS - as it is worth trying every angle

 

It must be particularly hard when you say that the mortgage could still be afforded if it was not for the charges - I think that if it ever got to a possession hearing and the monthly payments that were made were those that could be afforded- then a judge would be sympathetic.

 

Also CRFX has agreed to help me with a letter to the FSA regarding Barclays comments regarding hardship/waiver interpretation - so I will let you know how we get on

 

jan

[carey anne]

Hi jan

 

I haven't heard back from Barclays yet, I only sent the letter on saturday as ive had a lot to sort out but as soon as i have a response i'll let you know.

 

Ive just had a reply from the judge about lifting the stay, his comments below are as i expected

 

As in all cases advanced on the grounds of hardship where Claimants are seeking to lift the stay, I am unable to conclude that the individual cases would result in a speedier resolution of the claim than would result from the final determination of the OFT litigation. Those representing the banks before me on these applications have confirmed that even if the Claimants succeeded in their claims at first instance (and I am in possession of judgments in two cases where such claims have failed at first instance before District Judges) the banks would pursue appeals, if necessary to the House of Lords. That process, if it were allowed to proceed in any individual case, would take at least as long as the final determination of the OFT test case, and in addition would potentially expose the Claimants to substantial adverse costs orders, in addition to the immense strain and difficulty of conducting complex litigation without the benefit of legal representation. Neither Article 6 nor the overriding objectives provide arguments in favour of such a course

 

I think its clear that you cannot take the hardship route in court. Its up to the actual bank to determine whether its hardship. But, as i said the solicitor representing Barclays said that this case is definately not hardship. If applying repeat charges to fixed income individuals whose sole income is disability does not constitute hardship then i have no idea what does. If i dont get the desired response from the bank i will be pushing it further, to the FOS etc.

 

Ill keep you updated

[jansus]

Personally I think that even if the court is not the right place to move forward with your case at the moment, and I can understand the comments regarding costs, The bank is fully aware of the "hardship " background to this case and should at least be offering some kind of assistance ( under the terms of the banking code if nothing else)

 

We are still trying to send details to the FSA and pushing for details of their decision on the waiver.

 

Hope you get some sort of reply to your letter.

 

As far as publicity goes someone has suggested "this is money" website often can help with this ( connected with the mail I believe)

 

Best wishes

 

Jan

[carey anne]

Hi Jan

 

I've had a reply from Barclays to my request for a refund. I cant provide exact words as i just phoned my mum and she read it to me but it didnt answer my question. It said we are sorry to her of your loss etc, and went on to say the banks can be very helpful when people get into financial difficulty and there are a number of things they can do- although didnt say what, it said my mum will be contacted by the mortgage department shortly but this in no way means we will be recieving an offer of a refund of charges as they are under no obligation until the test case is resolved.

 

Im so annoyed. I requested that if they could not give a refund to at least provide me with an explanation as to why my parents who, on a low fixed income due to disability do not deserve special consideration under the banking code. They didnt even bother to mention the banking code.

 

My mum who has some psychiatric issues dealt with the finances when the charges were incurred, but since 2006 i have taken responsibility for her, i dont think she contacted them in writing at the time to tell the bank of her struggles but i know there was a home visit from the bank so they were definately aware and yet they still continued to apply charges. Since February this year I have stated my parents only income is benefits etc and they just dont care.

 

I so fed up, when is the meeting with the banking code board? If you need case examples you can have this one.

 

Also did you say you knew a contact at the newspapers?

 

Caroline

[jansus]

Hi

 

I will have a word with CRFX and see what is the best way to handle this - if you get time have a read of the last few posts on simons thread and abroadgirls thread - both in abbey - there is a link to "the this is money "web site which someone has suggested for publicity.

 

I THINK the bank are not obliged to refund the charges - however they have done so on some cases when under pressure from the FOS. So I would have thought this is the next move.

 

Probably a phone call ( it worked for simon)

 

speak to you again later.

 

jan

[jansus]

How about something like this.

 

To XXXXbank

 

 

From XXXXX

Reference account number XXXXXXX

Dear sir / madam

 

 

 

 

I refer to the above case . As you are aware I have been acting on the claimants behalf for some time. I know that you are fully aware of the claimants severe financial position as there has been previous correspondence and in fact a home visit. We have made several attempts to settle this matter outside the court system and to be honest I am not satisfied with your latest response dated xxxxxxx

 

The original charges were incurred as a result of the claimants illness and inability to handle their financial affairs and even thogh you were aware of this you continued to add the charges.

 

If it was not for these charges referred to in the above claim the claimant would not have the amount of mortgage arrears which are causing severe amounts of stress at a particularly difficult time.

 

To be honest I dont feel I should have to refer you again to the conditions of the waiver and the banking code as I am sure you are perfectly aware of all their contents.

 

I am again identifying the claimant as a hardship case where the excessive charges have been a cause or have worsened the present position . I (again)attach a summary of the current position for your records if you are unwilling to consider my request then you are under obligation to provide me with a written response indicating that you do not consider the case to be one of financial hardship and the reasons why together with your specific criteria on which you are basing your refusal.

 

 

In the mean time this letter is just to confirm that as I am so disappointed with your attitude and unprofessional and unsympathetic

attitude I am now referring this matter to the FOS and FSA - with a copy to the board that regulates the banking code."

 

 

Jan

[jansus]

by the way i have asked zootscoot to contact you about the publicity angle

 

jan

[jansus]

Those in hardship are not automatically entitled to get their charges back, only to have their claim considered. If your bank rejects your claim, you should complain to the Ombudsman as it will review your finances as a whole to help you out of hardship.

 

 

A RECENT STATEMENT FROM THE FSA

 

I Think the important bit is you are entitled to have your claim considered - and in your case they dont appear to have done this at all

 

Jan

[jansus]

Hi

 

sorry hope I am not being a pest but just want to let you know there has been a win on abbey - after FOS got involved .

 

jan