Tuttsi V Halifax ( 18 year claim )

[Tools]

Re: Tuttsi V Halifax ( 18 year claim )

At last

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Well the order dropped on the door mat today.....

Stayed, as expected............do I,


1. Is there any merit in taking this to the FOS!
2 or do I try to go for a lift of stay based on hardship - which they have
already agreed to.

Notice they have made no reference to the limitations part of the claim!

Anybody got any suggestions!!

xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Hi Tuttsi the FOS will not touch this if its already in the court system so no point attempting this.

It could be worth going for the stay lifting due to hardship, but only if you meet the criteria for hardship. See what others think mate.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Hi Tuttsi the FOS will not touch this if its already in the court system so no point attempting this.

It could be worth going for the stay lifting due to hardship, but only if you meet the criteria for hardship. See what others think mate.

We do meet the hardship criteria - Halifax had already agreed this in writing prior to us taking this action, but they only offered 1 of the charges to be returned in full which was within the 6 year period. The rest unfortunately is all outside the 6 year limit. We were also paid out on hardship from Abbey under the FSA waiver rules on hardship.


xx

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Yeah I remember you previously meeting the criteria, but wasn't sure if your situation had changed.

Worth a punt then I would say.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Yeah I remember you previously meeting the criteria, but wasn't sure if your situation had changed.

Worth a punt then I would say.

Situation has not really changed , the only exception is that with the Libor rate having dropped in Feb our mortgage will be set for the next 3 months at a the lower rate. This may not make a huge difference to our overall situation

We are currently still in arrears with Mortgage ( since o/h's eyes ops the year before last) and we still have the Suspended order on the Mortgage hanging over our head and will have for some time yet. So we are not out of the deep water yet.

xx

[Tools]

Re: Tuttsi V Halifax ( 18 year claim )

I have to disagree with you Tanz, I do still think that the FOS are approachable even though the complaint is now in Court.

Tuttsi, you mention your mortgage is still in arrears, were these not cleared with the £4k+ paid out by Abbey back in September?

I agree that you could ask for a lift based on hardship grounds if you could demonstrate to them that is the case and they accepted it. This would have to be based on your current situation. Will have another read of your attached letters and digest more as I have only quickly skimmed through them.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

I have to disagree with you Tanz, I do still think that the FOS are approachable even though the complaint is now in Court. I was thinking that too, based on the Financial Hardship.

Tuttsi, you mention your mortgage is still in arrears, were these not cleared with the £4k+ paid out by Abbey back in September? Unfortunately it was not enough to clear our mortgage arrears in total, we are paying an extra £250 month on top of our mortgage, so I kept it back for paying the mortgage payments when we had a shortfall each month, as the interest rates have been incredibly high. We also had some minor remedial work done at home which was a necessity and also ensential car repairs and MOT. Had Abbey have paid 100% there would have almost have been enough to clear the arrears and that would have saved us the extra £250 per month.

I agree that you could ask for a lift based on hardship grounds if you could demonstrate to them that is the case and they accepted it. This would have to be based on your current situation. Will have another read of your attached letters and digest more as I have only quickly skimmed through them.

As I said we do still come under the hardship situation, we still have the suspended order on the mortgage and arrears. I now just need to decide on the best way forward, bearing in mind the total of the claim now must be all outside the 6 years limitations. Halifax did agree our hardship on the one charge.

I will await your further advice in this matter.

xx

[Tools]

Re: Tuttsi V Halifax ( 18 year claim )

First thing I would suggest is that as Abbey didnt pay out the full claim before, then why not approach them for a further interim payment based on your hardship status. What did the last £4+k cover in your last request, i.e what did you tell them it was for? Did you tell them that you needed that amount to cover mortgage arrears ? Are any of the Abbey charges pre 6 year?

If Halifax have accepted that you are in financial hardship then you can use this when you write to the FOS. The pre 6 charges do cloud the situation a little but if you write to the FOS and inform the Halifax that you have done so, then it may just spur them on a little.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

First thing I would suggest is that as Abbey didnt pay out the full claim before, then why not approach them for a further interim payment based on your hardship status. What did the last £4+k cover in your last request, i.e what did you tell them it was for? Did you tell them that you needed that amount to cover mortgage arrears ? Are any of the Abbey charges pre 6 year? We just sent them documentary evidences of ALL our debts crystalised at that time which accelerated the hardship status. Abbey they just paid a standard 65% the same as most others received at that time. It was not to cover a pacific amount.

Had they have paid my claim in full I would have been able to have cleared the arrears totally, but other essential supplies such as Council Tax, Electricity and Gas would have suffered.

If Halifax have accepted that you are in financial hardship then you can use this when you write to the FOS. The pre 6 charges do cloud the situation a little but if you write to the FOS and inform the Halifax that you have done so, then it may just spur them on a little.

Good idea, I am thinking that we should write to the Halifax first giving them a bite of the cherry first, and advising them that I will pass my file to the FOS......What do you think!

xx

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Kindly supplied by Exc .... TB's opinion on claiming charges back to 1995 should test case go our way.

Tuttsi

This is Tom's legal argument for the theory that charges can be claimed back to 1995:

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a gray area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

There is an additional argument over the Limitations Act 1980:

Section 32(1)(b) of the Limitation Act 1980 postpones the commencement of the limitation period where

“any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.


The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

There is also support for this position from the European Court of Justice (ECJ). InCofidis SA v Jean-Louis Fredoutthe ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

The question put to the ECJ was

''Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?''

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.

The court concluded:

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts''.

''A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”

This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases.

After all, a right without a remedy is no right at all

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

We already covered Limitation Act Section 32(1) b and 32(1) c in your POC Tuttsi.

But there is some additional ( useful stuff ) in Tom's notes that we can adapt and use for a witness statement in your claim once the stay is lifted.

Am sure that you are already aware but you shouldn't get too excited just because the judgement in the Supreme Court appeal is being handed down next week. It doesn't mean that the stay on your claim is going to be lifted any time soon.

[TUTTSI]

Re: Tuttsi V Halifax ( 18 year claim )

Thanks Bud. I just put it here for the time being, so that I could find it if needed at some point and as you say it may be usefull latter.

Tutts

We already covered Limitation Act Section 32(1) b and 32(1) c in your POC Tuttsi.

But there is some additional ( useful stuff ) in Tom's notes that we can adapt and use for a witness statement in your claim once the stay is lifted.

Am sure that you are already aware but you shouldn't get too excited just because the judgement in the Supreme Court appeal is being handed down next week. It doesn't mean that the stay on your claim is going to be lifted any time soon.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Good idea Tuttsi.

Am sure TB has lots of other useful stuff that we can use later on as well.

I also have some additional material for use regarding the compound interest section of your claim.

Budgie

[Ruby]

Re: Tuttsi V Halifax ( 18 year claim )

I am going through a claim at the moment with Bank of Scotland, although not in the same circumstances, my account is still active. I am interested in the compound interest side of things. I have the original T & C's for BOS dated 1st April 2003. Is this when BOS and Halifax merged?

Monthly credits of £1000 or more the authorised rate was 8.9% EAR and unauthorised rate was 28.8% EAR.

Monthly credits of less that £1000 were 18.9% and 29.8%.

There is obviously a huge difference between the standard 8% and 28.8%!

To me that would mean a payout of 10K instead of 3.5K.

I read somewhere else on this site that with credit cards you should request back the compound interest that they charged you. Whey should it be any different with bank charges?