whizzkid vs LloydsTSB

[whizzkid001]

Just got the latest 'sorry, no refund of charges re hardship or at all'. Interested in views on some of their latest, very lame arguments:

1) "The Supreme Court has also decided that, under the UTTCRs, the level of the fees is not a reason for finding them to be unfair".

2) "When the Supreme Court looked at whether the OFT could challenge the fairness of the level of unarranged overdraft fees, they considered the UTTCR as a whole, including Regulation 5. The Court decided that, as long as they are clearly set out, the fairness of the level of the unarranged o/d fees cannot be assessed at all." (my emphasis!)

3) "Your assertion that the OFT found our unarranged o/d fees to be unfair is incorrect. As explained in the OFT's announcement in December, it decided not to continue it's investigation. While they did express some concerns over unarranged o/d fees, any challenge to our fees would need to have a legal basis"

4) "Furthermore, the OFT considered other ways it could challenge the fairness of unarranged o/d fees under reg 5. The arguments included that customers could not opt out of fees, banks can choose whether or not to make payments, customers may incur the fees in error, customers don't necessarily understsnd the banking system and customers who pay the fees may be subsidising services provided to other customers. You also raised the fact that there is no ability for customers to opt out as also being a ground for potentially being unfair. The OFT's view was that these arguments are unlikely to succeed and it has ended it's investigation into unarranged o/d fees."

5) "Your letter does not contain any proper explanation of the argument regarding abuse of dominant position. You will have to explain in detail the basis on which you claim we had a dominant position, how we are alleged to have abused this position and how our alleged conduct has caused loss"

6) "You also suggested that under s140A and 140B of the CCA 1974 the charges created an unfair relationship. We consider our fees to be fair and clearly explained. We have reviewed the points you raised in your letter as well as the information we have about your personal circumstances. On this basis, we don't believe there could be any successful legal challenge to the fairness of the banking relationship. We are not required, as you wrongly suggested, to justify this view in response to your unsubstantiated claim."

7) "When you opened your account we gave you a copy of the terms and conditions for that account. These explained the charges and when they are applied. You signed that you accepted these t&cs.

We consider our unarranged o/d fees to be fair and don't believe there is any basis on which they can be successfully challenged. Therefore we won't be upholding your complaint or be providing a refund of these fees"

[natweststaffmember]

Re: whizzkid vs LloydsTSB

If you opened your account prior to 2007 their point 7 is actually incorrect

[Amethyst]

Re: whizzkid vs LloydsTSB

What did you send them? Can i see a copy if poss ? (without your personal bits)

4) "Furthermore, the OFT considered other ways it could challenge the fairness of unarranged o/d fees under reg 5. The arguments included that customers could not opt out of fees, banks can choose whether or not to make payments, customers may incur the fees in error, customers don't necessarily understsnd the banking system and customers who pay the fees may be subsidising services provided to other customers. You also raised the fact that there is no ability for customers to opt out as also being a ground for potentially being unfair. The OFT's view was that these arguments are unlikely to succeed and it has ended it's investigation into unarranged o/d fees."

From the OFT's decision document

1.6 This is a decision about the OFT’s own investigation. It sets out the
OFT’s understanding of aspects of the Supreme Court judgment that are
relevant to individual complaints and claims for redress associated with
UOCs, but it does not mean that these individual actions are barred or
necessarily are likely to fail. Individual litigants should seek advice about
their own cases that takes into account their particular circumstances.



3.18 The above is a statement of the OFT’s position as a public enforcement
authority and should not be treated as advice to bank customers about
the possibility of bringing individual actions relating to UOCs under the
UR provisions of the Consumer Credit Act31. Their chances of success in
so doing would depend on the particular facts of each case, and they
therefore need to seek advice that takes account of their personal
circumstances.

[Amethyst]

Re: whizzkid vs LloydsTSB

If you opened your account prior to 2007 their point 7 is actually incorrect

Indeed. 7) "When you opened your account we gave you a copy of the terms and conditions for that account. These explained the charges and when they are applied. You signed that you accepted these t&cs.


You actually were given a leaflet explaining their charges - either ''Your guide to our rates and charges''2001 , ''A Guide to Our banking charges''2002-2004 or ''Banking Charges'' 2005 . Unfortunately the test case docs only went back as far as 2001.

There were NO T&C's before 2nd November 2007, only implied terms.


Have a read of the letter and discussion on this thread - Lloyds response letter - Legal Beagles and also Megansdens case

a. The Claimant contends that the Relevant Terms were not incorporated into the Agreement, and that there were no contractual terms in the Agreement that allowed for unilateral variation of the Relevant Terms by the Bank. The Bank is required to prove that the Relevant Terms were so incorporated into the Agreement, and to prove that contractual terms were incorporated into the Agreement that allowed for the unilateral variation of those Relevant Terms.
Justice Smith stated at Para 11 of OFT v Abbey & Ors [2009] EWHC 36 (COMM) Case No: 2007-1186;

I should make a declaration in terms that make it clear that it does not prejudice the position of any individual customer who wishes to raise an additional question as to the terms incorporated into his contract with Lloyds TSB.

and at Para 96;

As far as Lloyds TSB is concerned, there is (perhaps understandably in view of the issues raised in the pleadings) no evidence before me whether it had any contractual power to introduce changes to its contracts with its existing customers

Further In the Sealed-Order241008 Justice Smith notes that although it has been agreed between the OFT and Lloyds TSB it has not yet been determined by the court that the terms set out in documents which make provision for charges are incorporated into the contract between the Claimant and Lloyds TSB.

[whizzkid001]

Re: whizzkid vs LloydsTSB

The following is the letter I had sent them:


Dear Sir,



I write further to my outstanding complaint concerning unfair bank charges applied to my and my partner's current accounts, which had been placed on hold pending the Supreme Court test case of OFT v. Abbey National plc and others [2009] UKSC 6, and to your letter dated 12 January rejecting my claim.

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it quite clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment). It was therefore quite wrong and premature in your letter of rejection to assert that the level of unplanned overdraft charges “cannot be assessed for fairness” under the UTCCR per se.

Accordingly, in consideration of my request for a refund, and in light of the Supreme Court’s judgment, please ensure that you have regard to the following amended grounds of complaint:

1. I seek a refund of overdraft charges (with interest thereon) applied to my current account because these charges were unfair in terms of regulation 5(1) of the UTCCR as –

1. your charges were set by reference to the overall costs of providing current account services to all of your customers rather than the costs incurred by my individual conduct which occasioned bank charges;

1. at no time have you ever informed or adequately explained to me, that I would be paying bank charges in order to cross-subsidise the costs of providing the vast bulk of your customers with ‘free if in credit banking’;

1. your charging structure was designed or created the potential for rolling or multiple charges, with charges and interest being applied and/or occasioned by ‘charges on charges’;

1. the way that charges were imposed and accumulated in terms of your charging structure was unclear, unpredictable and complex; and

1. the main providers of current accounts in the UK operated a similar charging structure to you, and in so doing restricted market competition, resulting in my inability to obtain an alternative current account with a fair charging structure;

1. Separately, I also seek a refund of overdraft charges (with interest thereon) applied to my account because these charges were unfair within the meaning of section 140A(1) of the Consumer Credit Act 1974 for the reasons as set out in paragraph (1)(a) to (e) above, and in relation to the following additional reason: your charges were excessive in relation to the level and/or cost of the borrowing which triggered these charges.

I would ask you to have regard to the following examples of detriment which I have suffered as a result of your unfair and punitive charges:



These high level of punitive charges, and the cycle of adding more charges onto charges, have placed us into a cycle of debt and led our family into the most severe hardship, at a time when my self-employed business has already suffered a dramatic decrease in turnover and cashflow and which is presently barely producing any income at all. We receive no other benefits aside from Child Benefit. We do not have enough money to pay our regular bills or even to buy household essentials, as has been clearly evidenced in and since our initial complaint, and also evidenced by the regular failing of our direct debits, resulting in difficulty with paying our monthly mortgage. Essentially, these charges have had - and continue to have - a profound and detrimental impact on my life and that of my partner (who is suffering depression) and dependent child.


Please refund these charges to my account within the next 7 days. I reserve the right to commence court proceedings without any further notice, and to seek an additional award for distress and inconvenience, together with legal expenses.


Please also take note that the amount owed on both accounts is still firmly in dispute and accordingly, please refrain from persuing any further recovery action or from providing information about our financial position to the credit reference agencies.


Yours faithfully

[Amethyst]

Re: whizzkid vs LloydsTSB

Govan LC letter. Thanks Good to see a response to that one. have a look over those links I put in my last post on here, it might give you some more ideas on your options.

[whizzkid001]

Re: whizzkid vs LloydsTSB

Govan LC letter. Thanks Good to see a response to that one. have a look over those links I put in my last post on here, it might give you some more ideas on your options.

Will do. I figure the next logical step now, as this is a claim for hardship, will be the FOS. But at least hopefully it may temporarily stop their goddam call centre ringing us 6-7 times a day, every day!

[natweststaffmember]

Re: whizzkid vs LloydsTSB

Hold on Whizzkid, I think you know the drill now, lol.
Do you have priority debt arrears(mortgage/rent, council tax, utilities)?
Are you still using the bank account as your main account?
Have you spoken with those companies you are in arrears with to see what help they are able to give(very important bit with reference to the lending code section 137)?

If you have then outline with reference to the lending code why you are in hardship, how the income became less than the outgoings and what you did to remedy that and why it is still currently an issue.

If you do then I would be surprised if they didn't offer a refund for the period of time in which financial hardship began.

[whizzkid001]

Re: whizzkid vs LloydsTSB

Hold on Whizzkid, I think you know the drill now, lol.
Do you have priority debt arrears(mortgage/rent, council tax, utilities)?
Are you still using the bank account as your main account?
Have you spoken with those companies you are in arrears with to see what help they are able to give(very important bit with reference to the lending code section 137)?

If you have then outline with reference to the lending code why you are in hardship, how the income became less than the outgoings and what you did to remedy that and why it is still currently an issue.

If you do then I would be surprised if they didn't offer a refund for the period of time in which financial hardship began.

Lol

Ok, yes we have priority debts, no we have stopped using the Lloyds accounts for several months now, Abbey is now our main account. Yes, most of the companies we approached were fine with accepting reduced payments or in some cases, none at all for a time.

So you know of some payouts currently from LloydsTSB? They have been stubbornly refusing point blank for 3 or 4 months now. They even cheekily say in the letter I quoted above:

"You said in your letter that you are experiencing financial difficulties. I understand you may be having difficulties; however we were aware of your situation when we received your previous letter and took this into consideration when we responded in our letter dated 30 October 2009. I have given your details to my collegues in Collections Team who will investigate it further. They will contact you seperately if they have not already done so.

Having read your letter, we are reviewing your situation to understand whether our policy for dealing with customers in financial hardship applies. If it does I can assure you we will act accordingly".

But..... having said they will do all that, forward my complaint on, they end up conversely and prematurely rejecting it anyway:

"As we do consider each customer's position individually, I have undertaken a review of your case. Unfortunately, having reviewed all the information available to me, I have not found any evidence that shows your situation has had a negative impact on the way your account has been handled."

Then just the usual 'You can now complain to FOS....'

[natweststaffmember]

Re: whizzkid vs LloydsTSB

And the account is no longer used so is no longer creating financial hardship because all monies do not go into that account. That is, in my honest opinion, how the FOS would see the case ie that it is no longer an active account and therefore is not contributing to rent/mortgage arrears, council tax, utilities, etc,etc.
If you did all of this at the time, you might want to argue that they didn't properly assess the claim at the time and forced you to move banks so that you could deal with the financial hardship but I am doubtful if this approach would work unless you spoke with your creditors as well and wrote to the bank outlining what had been done at the time.