Bank charges with hardship claim

[killersla]

Re: Bank charges with hardship claim

well the end of the week is upon us so i rekon my court case is stayed till the complete outcome of the test case. The court did say however i can appeal to lift this saty on my HSBC claim after the seven days but have to give my reasons why but alas i cannot and do not have a clue what to put in my appeal mabe i should just give up on this one.

[Budgie]

Re: Bank charges with hardship claim

Sorry Killer,

I have been tied up with work for the last couple of days.

I will get something drafted for you tomorrow that you can use as a stay lift appeal if you wish.

Budgie

well the end of the week is upon us so i rekon my court case is stayed till the complete outcome of the test case. The court did say however i can appeal to lift this saty on my HSBC claim after the seven days but have to give my reasons why but alas i cannot and do not have a clue what to put in my appeal mabe i should just give up on this one.

[killersla]

Re: Bank charges with hardship claim

yes ofcourse please budgie i know your very busy and any help is of a great help to me thanks.

[WendyB]

Re: Bank charges with hardship claim

Hi killer

have you sent the letter to Natwest asking them to explain their reasons for not considering you a hardship case? And have you had it in writing from HSBC why they are not considering you a hardship case?

[Budgie]

Hi Killer,


Sorry for the delay.

Here is a very rough draft for you.

It is still being worked on but hopefully it will give you an idea of how you should word your application and what you should include.

I will continue to work on it and refine / correct it, have also asked other LB team members to put their two pennyworth's in as well.

I am aware of the short timescales so I suggest that you adapt / amend the draft below to suit your own situation and then post up a copy on here, we can then make any further revisions that might be suggested to your adapted version.



HOW TO APPLY FOR A STAYED BANK CHARGE CLAIM TO BE LIFTED

If your local Court have applied a stay to your bank charges claim pending resolution of the test case you may apply for this stay to be lifted.

Note : You should do this using the Court N244 form, there will usually be a charge of £35 ( without a hearing ) or £65 ( with a hearing ) for submitting this application to the Court. However, Claimants undergoing financial hardship Claimants may well qualify for remission or exemption from the fee, you should apply for this fee exemption using an EX160 form if this is the case.

Link to N244 form : http://www.hmcourts-service.gov.uk/c.../n244_0400.pdf


Link to EX160 form : Will post the link here shortly

How to fill in the N244 form :-

Top left hand box: Tick – “a" without a hearing” Leave the rest blank

Top right hand box: Fill in all the details applicable to your own claim

Part A:

I (full name) (the claimant) wish to apply for an order ( a draft of which is attached) that allows the mitigating factors that have now become apparent to be presented to the court to have this or any stay in this case lifted.

Because: The claimant is now aware that their case has been stayed pending the outcome of the test case against several banks by the OFT but believes that there are mitigating factors which the claimant believes should be presented to the court to have this stay lifted.


Part B : Tick - “evidence in Part C in support of my application” box

Part C: I wish to rely on the following evidence in support of this application:

I respectfully request that the court considers the attached statement describing the grounds upon which the Claimant believes the stay should be lifted and this case be allowed to be dealt with as per the normal Court Procedure Rules.

Please carefully check through and adapt the attached "Application for Lifting of Stay - Evidence" to the N244 form.

( Note that this document contains optional sections relating to financial hardship and claimants in receipt of benefits that you should either modify to suit your own circumstances or delete if not appropriate )






In the XXXXXXXXXXXXXXXXXXXXXX County Court


Claim number XXXXXXXXX
Between
XXXXXXXXXX - Claimant
And
XXXXXXXXXX – Defendant

APPLICATION FOR LIFT OF STAY – EVIDENCE
I, the Claimant, respectfully request that the stay which was ordered on the XX/XX/XXXX, pending resolution of the test case between the Office of Fair Trading (OFT ) and the UK Banks, be lifted and that this claim be allowed to proceed under normal Court procedures in the small claims track.


THE OVERRIDING OBJECTIVE
It is submitted that the Overriding Objective requires that the Claimant’s case be allowed to proceed speedily in order that the parties to this case may obtain a just settlement. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive. The Claimant requests that his case is dealt with expeditiously and fairly and in a manner that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on the Claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.


BALANCE OF CONVENIENCE
The sum claimed is insignificant to the bank but is a significant sum to the Claimant. Furthermore, although a stay prevents the Claimant from recovering money owed, the Defendant is not prevented from continuing to levy penalty charges or interest on debt comprised of those penalty charges so the order of the Court has the effect of favoring a powerful and well-resourced institution and does not place any restriction on their continued application of penalties which the Claimant contends are unlawful or certainly in legal dispute. Additionally, many banks are now routinely closing the accounts of their customers who commence claims against them. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship. The Claimant will remain at risk of such action despite the fact that the remedy has been placed on an indeterminate hold.

Additionally, the Defendant remains at liberty to enter the Claimant’s name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They are not required to obtain a County Court judgment before they enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were the Claimants name to be entered on the default register it would be almost impossible to obtain credit or a mortgage and the Claimant would have to pay higher fees for any credit actually obtained. It is submitted that a stay may potentially mean great difficulty for the Claimant and yet be insignificant for the Defendant.


THE OFT AND ITS POWERS UNDER THE UNFAIR TERMS IN CONSUMER CONTRACT REGS 1999
The Unfair Terms in Consumer Contracts Regulations 1999 gives the power to the Office of Fair Trading to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.
The OFT conducted a 2-year investigation of the contractual charges regime. They received a great deal of confidential evidence from the banks.
The OFT has already announced that it considers that the contractual penalty charge regimes of these financial institutions are unfair.
It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the banks’ refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.
However, it is submitted that the issue of a test case and the definitive settling of the banks’ penalty charging system is a matter to be borne by the OFT or some other public body who are tasked and resourced to deal with this matter. It is not a burden to be suffered by the private citizen and in particular by the Claimant in the instant case. The Claimant should not however be deprived of the right to seek redress whilst this protracted legal battle continues.


ADDITIONALCONSIDERATIONS – Financial Hardship of the Claimant


I, the Claimant, like so many other Claimants in similar cases am a normal person on a low to average income and owing to the charging policy of the banks have been deprived of a considerable amount of my own money for a number of years and suffered hardship as a result. I will continue to suffer hardship for a much longer period if the stay is permitted to remain. The Defendant has virtually unlimited funds by comparison. I like many other Claimants would be financially prejudiced by this matter continuing for a prolonged period, not just by the fact that if I succeed I will have been deprived of my money for a much longer period, money that would make a significant difference to my life, but also by the fact that in the meantime, the Banks can continue to charge their outrageous penalties, imposing further hardship on me, for the period of the stay. I wish to have my private law dispute resolved expeditiously and fairly by the Court by allowing my action to proceed to a final hearing in the normal way.

Optional Paragraph : ( modify to suit or delete if not applicable )

An additional argument in my case is the fact that I am in receipt of [insert benefit name] benefits which are paid directly into the account with the defendant. The category of benefit that I receive is deemed as inalienable under the Social Security Administration Act 1992 (s.187) which states as follows:

187.—(1) Subject to the provisions of this Act, every assignment of or charge on—
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b)any income-related benefit; or
(c)child benefit
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.

My argument is that penalty charges by the Bank amount to an unlawful charge under Section 187. Allowing a stay to remain in place would allow the Defendant to continue this practice, which will cause undue hardship and which, if found in my favor, cannot be properly compensated.

Optional Paragraph : ( Modify to suit )

I, the Claimant, am aware of the FSA Waiver which allows the Defendant a waiver from the FSA’s complaint handling rules. I am also aware of the general guidance issued to the County Courts with respect to the general staying of claims for the refund of bank charges until final resolution in the Test Case.

The Claimant wishes to bring to the Court’s attention that I am currently suffering severe financial hardship.

The FSA waiver includes the FSA’s defintions of indications of financial hardship ;

“2. In making an assessment of financial difficulty the firm will take into account:
a. evidence of changes in lifestyle, including loss of employment; disability; serious illness; imprisonment; relationship breakdown; death of a partner; starting a lower paid job; parental/carer leave; and starting full-time education;
b. evidence of the following events:
i. items repeatedly being returned unpaid due to lack of available funds;
ii. failing to make loan repayments or other commitments;
iii. discontinuation of regular credits;
iv. notification of some form of insolvency or court proceedings;
v. regular requests for increased borrowing or repeated rescheduling of debts;
vi. making frequent cash withdrawals on a credit card at a non-promotional rate of interest; and
vii. repeatedly exceeding a credit card or overdraft limit without agreement (and, in this regard, where a complainant has incurred over £500 in unauthorised overdraft charges in the previous 12 months, that is to be treated as indicative of financial difficulty). “


The Claimant confirms that he meets many of the above indications of financial difficulty.
The Claimant confirms that he wrote to the Defendant regarding the financial hardship situation on xx/xx/xxxx and copies of the relevant correspondence are attached to this application.
The Defendant has failed to acknowledge the Claimant’s financial hardship / has rejected the Claimant’s evidence of financial hardship without providing an explanation / has failed to respond at all.

The FSA have also suggested the actions they consider the Defendant should undertake to assist those suffering financial hardship ;

“15. When dealing with complainants in financial difficulty, the firm should consider the following steps in respect of the period during which they are assessed as being in financial difficulty:
(a) the firm might waive future unauthorised overdraft charges; and
(b) the firm might not enforce debts against complainants in financial difficulty to the extent that these debts are made up of unauthorised overdraft charges.
16. Before closing a personal current account of a customer in financial difficulty, the firm might offer the customer a basic bank account, if this is a facility that the bank offers.

As the Defendant has failed to acknowledge / rejected / not responded to the claimant’s evidence of financial hardship they have obviously not undertaken any of the actions suggested by the FSA.

The Claimant therefore respectfully requests that the Court remove the stay and allow the Claimant’s claim to proceed.

IN THE ALTERNATIVE
If the Court decides not to accede to the Claimants request to remove the stay then the Claimant respectfully requests that the Court issues the following injunctions:
• That the defendant is prevented from applying further penalty charges to the Claimants account until the final settlement of the matter.
• That the Defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter
• That the Defendant is prevented from closing the Claimant’s account.
• That the Defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
• That the Defendant removes any derogatory entry on its own records insofar as it relates to penalty charges.
• That the Defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges.
• That these injunctions remain in place until the settlement of the Claimant’s case.
• That should the Claimant’s case proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent
• That if the matter should not proceed to a hearing because the Defendant decides to settle outside court, that these injunctions should become permanent.




I, the Claimant, believe all facts stated to be true.




Signed, dated.

[killersla]

Re: Bank charges with hardship claim

thats some really nice work budgie i have just skimmed over it and wont havea chnace to go through it properly till monday but it looks great. so on monday i will get all the forms i need fill them all in (after suiting it to my needs) and drop them of at the court.

Also i still have not recieved any letter from HSBC in regard to my financial hardship claim but will ring them on mon also.

And i have not got round to sending a letter to natwest asking to explain themselves better some thing else i will do on monday.

so bust day for me on monday and i will let you know whats going on with what.

And again thank you very much for your continued support in these matters xxxxxx
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thats some really nice work budgie i have just skimmed over it and wont havea chnace to go through it properly till monday but it looks great. so on monday i will get all the forms i need fill them all in (after suiting it to my needs) and drop them of at the court.

Also i still have not recieved any letter from HSBC in regard to my financial hardship claim but will ring them on mon also.

And i have not got round to sending a letter to natwest asking to explain themselves better some thing else i will do on monday.

so bust day for me on monday and i will let you know whats going on with what.

And again thank you very much for your continued support in these matters xxxxxx

[killersla]

Re: Bank charges with hardship claim

hi all i have been into the court today and have been told at his stage i do not have to complete a N244 form to apply for the removal of the stay so i have just written a letter objecting to the stay with the infomation provided above and explained my reasons for not replying within the seven days ( dont worry i didnt put i was waiting for a reply of my legal beagles friends) so now i will wait and see what the judge says although i still might have to fill a form out if the judge requests me to do so.

I have sent a letter to Natwest asking them to explain better there reasons for not considering me to be in financial hardship.

And i still have not recieved a letter from HSBC explaning there reasons so a qwick call to them soon or a letter will be sent to them aswell.

[killersla]

Re: Bank charges with hardship claim

just a qwick update i have heard nothing from the judge as yet in regard to the stay on my HSBC claim.

I still have not recieved a letter explaning why HSBC will not consider me for hardship.

I sent a letter to natwest to ask them to explain to me in full why they will not consider me for hardship but nothing back as yet.

In regard to HSBC even though they explained to me over the phone why they will not consider me for hardship i presume i have to have it in writing before the time alowed they have to respond to my complaint is up and if that time expires then i take it straight to the FOS.

[Amethyst]

Re: Bank charges with hardship claim

I think a final decision by phone is as fine as by writing with regards taking the case to FOS...and I wouldn't hold your case up any longer than necessary.