CCA and UTCCR arguments

[hicskis]

Re: CCA and UTCCR arguments

To continue - Therefore if you go overdrawn are you really in breach?

Yes and no.

They reserve the right to terminate as a consequence of you going overdrawn. This is not a service per se, it's a consequence.

I don't think there is a misrep argument here when you step back and look at the bigger picture.

How they worded this, or presented it does not remove from the fact that there is a contract in place:

1. You borrow money that you are not authorized to do so - there are consequences.
2. You have no right to credit - this is the banks money - so their rules
3. You agree to the rules - so you are aware of the consequences.
4. You borrow money anyhows.

That's the circle you are stuck in.

Does it help..xx

[Amethyst]

Re: CCA and UTCCR arguments

1. You borrow money that you are not authorized to do so - there are consequences. You are authorised by virtue of them paying it (hence the new terminology ''informal overdraft request'' - it is simply a more expensive overdraft than the ''formal'' agreed in advance overdraft but you have no way in advance of knowing if they will agree it or not. Sometime you might ask for a formal overdraft in advance and be refused, but they then give you an informal one to cover the same payment you asked for a formal one for....but charge you 10 times the amont in charges......
2. You have no right to credit - this is the banks money - so their rules no you have no right to credit except by virtue of the agreed terms of the account - their rules have to be fair and understandable.
3. You agree to the rules - so you are aware of the consequences. you are aware of the consequences in part - if you go over agreed limit you will incur a charge - or two....if you try to and they refuse you you will incur a charge...or two...
4. You borrow money anyhows.you make a transaction which would take you over agreed limits if paid - whether you actually borrow the money or not is completely at the banks discretion, you have no knowledge in advance whether that amount will be paid or what charge it will incur, take natwest - if they decide to pay it it will cost you £5, plus £20 for going over in the month, but if they decide to bounce it it will cost you £15. So knowing you have made that transaction you know it may be paid costing £25 plus the debit interest or may not be paid costing £15...you don't find out till they chose to tell you.

THAT IS the circle you are stuck in.

Does it help..xx

There is NO breach. (with the possible exception of nationwide)

However, the banks, when you opened your account and subsequently they told you of new terms and sent letters telling you you had breached your contract and therefore they would charge you to cover their administrative costs, were misrepresenting the service and the charge.

Were they just saying this to induce you to pay the charges, as if you had known it was a bonafide service and part of the price of your account you might have questioned what the service was you were receiving and the amount that service was being charged at ?or did they truely believe that the charge WAS because you breached your contract and a penalty and the charge WAS meant to cover their costs of dealing with your breach ?

[hicskis]

Re: CCA and UTCCR arguments

ah..

1. Informal Overdraft - But informal is not formal - meaning it was not formalized i.e authorized - you could only argue that the bank should have mitigated your loss by refusing the payment i.e the cheaper route.

However if the bank had refused you a formal overdraft and then permitted an informal one - you would be in a position to ask why? By allowing the informal overdraft they have established that you are good risk so you could argue that a formal overdraft should have been permitted which would have mitigated your loss.

I once had a barclays personal account, a sole trader business account, and a credit card all at the same branch. I applied for an overdraft on my personal account for personal reasons. This was refused. Barclays however permitted an overdraft on my business account (sole-trader) on much more expensive terms, and they increased the rate on my credit card at the same time to facilitate purchases also at a much higher rate of interest.

I was able to argue (as a whole) that i was the one and same person in Law and that this decsision was Unfair and i had sufferred significant loss as a consequence of me being not able to structure my affairs under the personal account at cheaper rates - even though i was deemed by them to be good risk. I screwed Barclays for a discount on the overdraft i.e i paid my debts off for a lot less than what i actually owed.

2. You have no right to Credit - period. The banks rules state on what basis credit is or is not permitted. They can always refuse you credit and that is their right as it's their money - that was legal advice i had received.

3. You agree to the rules so you are aware of the consequences. It is up to the individual to manage the account - not the bank.

4. You borrow money anyhows - the bank is not obliged to lend to you. The mitigation argument comes back in. What did you or the bank do to mitigate your loss.

The only circle is not managing your affairs and letting the bank screw you.

Everything else is tied up in the contract which can change. Processing your account be it in credit or debit costs the banks money in administration in various forms. Even if you were able to argue misrep the contract will always fall back to the bigger picture:

1. You borrow money
2. Authorized or unauthorized
3. You agree to the rules and are aware of the consequence of breach
4.You breach because you want to borrow more money.

When you breach the terms of contract, however written, there are consequences ranging from the minute to the most severe - on both sides - this does not mean the contract will be null and void if one term does not fit.

You must see the bigger picture - soz :tung:

[Amethyst]

Re: CCA and UTCCR arguments

ah..

1. Informal Overdraft - But informal is not formal - meaning it was not formalized i.e authorized - you could only argue that the bank should have mitigated your loss by refusing the payment i.e the cheaper route.

However if the bank had refused you a formal overdraft and then permitted an informal one - you would be in a position to ask why? By allowing the informal overdraft they have established that you are good risk so you could argue that a formal overdraft should have been permitted which would have mitigated your loss.

I once had a barclays personal account, a sole trader business account, and a credit card all at the same branch. I applied for an overdraft on my personal account for personal reasons. This was refused. Barclays however permitted an overdraft on my business account (sole-trader) on much more expensive terms, and they increased the rate on my credit card at the same time to facilitate purchases also at a much higher rate of interest.

I was able to argue (as a whole) that i was the one and same person in Law and that this decsision was Unfair and i had sufferred significant loss as a consequence of me being not able to structure my affairs under the personal account at cheaper rates - even though i was deemed by them to be good risk. I screwed Barclays for a discount on the overdraft i.e i paid my debts off for a lot less than what i actually owed.

Completely agree with this, and this is one of the arguments ~I think will assist success in reclaiming charges - even if only the charges due to that specific instance. Also trying to get an OPT IN to informal overdraft requests as standard on all accounts, or at very least an OPT OUT option.

2. You have no right to Credit - period. The banks rules state on what basis credit is or is not permitted. They can always refuse you credit and that is their right as it's their money - that was legal advice i had received.

Agreed

3. You agree to the rules so you are aware of the consequences. It is up to the individual to manage the account - not the bank.

Yes but the bank must facilitate you managing the account - inaccurate balance information at ATMs, uncertain processing times for debit card payments, debits being extracted before credits are credited on the same day etc.

4. You borrow money anyhows - the bank is not obliged to lend to you. The mitigation argument comes back in. What did you or the bank do to mitigate your loss.

goes back to point 1 I guess.

The only circle is not managing your affairs and letting the bank screw you.

Everything else is tied up in the contract which can change. Processing your account be it in credit or debit costs the banks money in administration in various forms. Even if you were able to argue misrep the contract will always fall back to the bigger picture:

1. You borrow money
2. Authorized or unauthorized
3. You agree to the rules and are aware of the consequence of breach
4.You breach because you want to borrow more money.

When you breach the terms of contract, however written, there are consequences ranging from the minute to the most severe - on both sides - this does not mean the contract will be null and void if one term does not fit.

You must see the bigger picture - soz :tung:

I am looking at the bigger picture which is why I am discussing this and why I am constantly revising my opinion on the prospect of success on historical bank charges claims. And trying to get that across to everyone so that if people do decide to continue they are fully aware of all the issues and the quite high risks of continuing and also concentrating on the future of personal banking, as I recognise there are problems, they arent necessarily unlawful issues and regulation/legislation may be needed to resolve some of those problems, which ARE and have caused a lot of problems for many people - many low income and vulnerable consumer groups.

[hicskis]

Re: CCA and UTCCR arguments

a) I would love to see Opt In/Opt out contracts - but i guess the consequence of Opt out would be a bigger fee.

b) It would be great to see the banks facilitate things - but i don't see them doing it for one very good reason

C) We're both fighting the same cause, and i agree without legislation things won't change. There are two ways to get the legislation:

1. Through campaigning - and it seems to be moving slowly in that direction, and

2. Through the courts

[Amethyst]

Re: CCA and UTCCR arguments

a) I would love to see Opt In/Opt out contracts - but i guess the consequence of Opt out would be a bigger fee. - not sure how you mean - there is one account in the big eight banks which does offer opt out of overdraft - Lloyds Control account - this charges £10 a month - it also charges 10 per declined transaction (which is wrong especially for declined debit card transactions as these are declined at the point of sale) but the technology exists - it is simply not in the banks interests because if there is no consideration (other than have they opted out of unauth overdraft checks) and the cust is certain that anything they pay or is called for by DD is refused if it would take them over their overdraft. the exception being guaranteed cheques - which are being phased out anyway.

b) It would be great to see the banks facilitate things - but i don't see them doing it for one very good reason because then they couldnt screw people for charges

C) We're both fighting the same cause, and i agree without legislation things won't change. There are two ways to get the legislation:

1. Through campaigning - and it seems to be moving slowly in that direction, not sure if you have read the which? attempts at changes to legislation that has gone through a couple readings (and been withdrawn) I will find a link on here for you if not. We're trying our best through the OFT but we are teeny tiny dots, we're trying to get CAB on board for lobbying but this is slow going and

2. Through the courts Rep action pushing cases to the ECJ is one route we are considering but without insurances willing to take it up and not having the unlimited funds it is very very difficult. There are a couple routes we are working on and some fantastic people working on it but again slow going and whilst all the cogs slowly grind people are having cases struck out daily.

We also tried so hard to get all the consumer sites/forums working together towards the one goal but things get in the way as you can imagine and although we would all be stronger together and COULD have an effect it just didnt happen. We did, together, meet with the OFT beginning of Feb about the PCA market, and we were going to do a Press Release/open letter off the back of that meeting, but sadly other than Bob Edgerton, no one has been interested. It is extremely frustrating.

Also my apologies, we didnt manage to include the CRA parts in the PCA report (as it did end up being very breif), but we'll do it as a seperate issue to the CRA consultation (when the OFT get on with that)

[hicskis]

Re: CCA and UTCCR arguments

Apologies but i've gone for the painting option as speed is necessary:

Re: CCA and UTCCR arguments
Quote: By Amethyst:

Originally Posted by hicskis
a) I would love to see Opt In/Opt out contracts - but i guess the consequence of Opt out would be a bigger fee. - not sure how you mean - there is one account in the big eight banks which does offer opt out of overdraft - Lloyds Control account - this charges £10 a month rip off - it also charges 10 per declined transaction that's the bigger fee i'm talking about (which is wrong especially for declined debit card transactions as these are declined at the point of sale) but the technology exists unbelievable - but helps the argument of mitigation on the previous posts- it is simply not in the banks interests because if there is no consideration (other than have they opted out of unauth overdraft checks) and the cust is certain that anything they pay or is called for by DD is refused if it would take them over their overdraft. the exception being guaranteed cheques - which are being phased out anyway.

b) It would be great to see the banks facilitate things - but i don't see them doing it for one very good reason because then they couldnt screw people for charges yep

C) We're both fighting the same cause, and i agree without legislation things won't change. There are two ways to get the legislation:

1. Through campaigning - and it seems to be moving slowly in that direction, not sure if you have read the which? was this which or the Finance Bill - now you're confusing me - sorry?? Please clarify... attempts at changes to legislation that has gone through a couple readings House of Lords and the Finance Bill ?? The Finance Bill has been withdrawn or am i mistaken?? (and been withdrawn) I will find a link on here for you if not. We're trying our best through the OFT but we are teeny tiny dots, we're trying to get CAB on board for lobbying but this is slow going and

2. Through the courts Rep action pushing cases to the ECJ is one route we are considering but without insurances willing to take it up and not having the unlimited funds it is very very difficult. There are a couple routes we are working on and some fantastic people working on it i know but again slow going and whilst all the cogs slowly grind people are having cases struck out daily.


We also tried so hard to get all the consumer sites/forums working together towards the one goal but things get in the way as you can imagine and although we would all be stronger together and COULD have an effect it just didnt happen. We did, together, meet with the OFT beginning of Feb about the PCA market, and we were going to do a Press Release/open letter off the back of that meeting, but sadly other than Bob Edgerton, no one has been interested. It is extremely frustrating.

Also my apologies, we didnt manage to include the CRA parts in the PCA report (as it did end up being very breif), but we'll do it as a seperate issue to the CRA consultation (when the OFT get on with that)

no worries

[Amethyst]

Re: CCA and UTCCR arguments

Sorry lol, yes the Which? proposed additions to the FSB have been withdrawn twice so far. The proposals were/are to amend the UTCCR (i dont agree fully with how they have worded it as the unintended consequences are vast but it brought the issue into discussion in the commons and at committee which has to be good)

[hicskis]

Re: CCA and UTCCR arguments

This is why i wait for the finished version - all us teeny dots though make up the print in the end.

[Amethyst]

Re: CCA and UTCCR arguments

we do..i don't mind being a dot....be nice to see more input from slightly bigger dots too tho..... the OFT used quite a lot of our suggestions in their interim PCA response, but our first one we managed to get professionally drafted and we just couldnt afford to this time, but at least it shows we DO have a say, and what we say DOES get listened to and acted upon where possible and we try our best and don't just stand about whinging. I just wish we had a lot more time in the day to get everything done we'd like to, so much is happening and there are a lot of consultations out there which we SHOULD be responding too.

I think Which? have done a marvellous job, with the FSB and with the future of banking commission work, and are continuing to do so. Them upstairs ARE listening they just need encouragement to listen harder.


(and when I say we I mean consumers)

[Amethyst]

Re: CCA and UTCCR arguments

Back to misrep for a bit (just because...)

Okay - CCA unfair relationship and UTCCR good faith aside - just looking at Misrepresentation Act 67............

For an action to be successful, some criteria must be met in order to prove a misrepresentation. These include:

• A false statement of fact has been made,
• The statement was directed at the suing party and
• The statement had acted to induce the suing party to contract.

(nice simple description from WIKI)

Now I am a little concerned about the use of defences/letters etc from the beginning of a claim for charges AS misrepresentation. Because they have nothing to do with whether you enter a contract or not. Also defences etc are statements of opinion I believe.

Original T&Cs pre contract would be okay to use (IF there is an argument)

Section 2 (1) of the Misrepresentation Act 1967 reverses the burden of proof from the claimant to the defendant.

Section 2 only applies to NON FRAUDULENT misrepresentation.

But again only goes up to the time the contract was ENTERED in to and must have induced the entering into the contract,
Museprime Properties v Adhill Properties [1990] 36 EG 114

Horsfall v Thomas [1862] 1 H&C 90


Defences etc and notification of charges letters would only serve to enforce the original representation so would be of no use in a standard misrep claim.

Also materially the 'misrep' terms are the same as what they should have been represented as - ie they both would result in same end, and its doubtful a different representation of the charges would have changed any consumers mind about enterin the contract.

ALSO if you didnt read the terms before entering the contract then the misrep didnt induce you ( Horsfall v Thomas )

Just some ponderings anyway, next ponderins I guess are on perjury (but I think thats doomed anyway)

[hicskis]

Re: CCA and UTCCR arguments

Original by Amethyst:
Back to misrep for a bit (just because...)

Okay - CCA unfair relationship and UTCCR good faith aside - just looking at Misrepresentation Act 67............as amended

For an action to be successful, some criteria must be met in order to prove a misrepresentation. These include:

• A false statement of fact has been made,
• The statement was directed at the suing party and (contracting party)
• The statement had acted to induce the suing party to contract.

(nice simple description from WIKI)

here's another:
http://en.wikipedia.org/wiki/English_tort_law

Now I am a little concerned about the use of defences/letters etc from the beginning of a claim for charges AS misrepresentation. Because they have nothing to do with whether you enter a contract or not. Also defences etc are statements of opinion I believe. They are statements of opinion waiting to be tested by the court.

Original T&Cs pre contract would be okay to use (IF there is an argument) yep

Section 2 (1) of the Misrepresentation Act 1967 reverses the burden of proof from the claimant to the defendant. are you sure?

Section 2 only applies to NON FRAUDULENT misrepresentation. and fraud is very hard to prove

But again only goes up to the time the contract was ENTERED in to and must have induced the entering into the contract,
Museprime Properties v Adhill Properties [1990] 36 EG 114

Horsfall v Thomas [1862] 1 H&C 90


Defences etc and notification of charges letters would only serve to enforce the original representation so would be of no use in a standard misrep claim.

Also materially the 'misrep' terms are the same as what they should have been represented as - ie they both would result in same end, and its doubtful a different representation of the charges would have changed any consumers mind about enterin the contract. or changed the consequence - the breach can be remedied.

ALSO if you didnt read the terms before entering the contract then the misrep didnt induce you ( Horsfall v Thomas )

Just some ponderings anyway, next ponderins I guess are on perjury oh dear you've got it bad (but I think thats doomed anyway)

You run the risk with this is that the Judge strikes a Misrep claim and brings it back to Breach of Contract anyhows because ultimately you are arguing the terms of the contract.

[natweststaffmember]

Re: CCA and UTCCR arguments

I think the letters saying that the unpaid item are to cover our administration costs of returning the item or wording such as that is not misrepresentation even with the cross subsidy model. Interpretation of the word "administration costs" would be key and false statement of fact(which in the broadest sense of the word it isn't).

[Amethyst]

Re: CCA and UTCCR arguments

1 Removal of certain bars to rescission for innocent misrepresentation

Where a person has entered into a contract after a misrepresentation has been made to him, and—
(a)the misrepresentation has become a term of the contract; or
(b)the contract has been performed;
or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Act, notwithstanding the matters mentioned in paragraphs (a) and (b) of this section.
2 Damages for misrepresentation

(1)Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.
(2)Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.
(3)Damages may be awarded against a person under subsection (2) of this section whether or not he is liable to damages under subsection (1) thereof, but where he is so liable any award under the said subsection (2) shall be taken into account in assessing his liability under the said subsection (1).
[F13 Avoidance of provision excluding liability for misrepresentation

If a contract contains a term which would exclude or restrict—
(a)any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or
(b)any remedy available to another party to the contract by reason of such a misrepresentation,
that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11(1) of the M1Unfair Contract Terms Act 1977; and it is for those claiming that the term satisfies that requirement to show that it does.]




I dont know anything lol

[charitynjw]

Re: CCA and UTCCR arguments

Would 'Negligent Misrep' be an easier option than 'fraud'?

http://www.gillhams.com/dictionary/217.cfm