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Re: Suewilo v Yorkshire Bank - hearing 23rd Feb - strike application
comment pls
(red bits at end were to go after point 11 not sure whether to include at this stage actually, i dont think so and would rather keep for the POC's, AND they need rewording to be more personal to Sue's experiences)
SUE - on your spreadsheet you have £20 charges for the unauthorised overdraft and the £8 daily charges for being overdrawn - can you see on your statements what transactions incurred what charges ?
This can be seen at least in the following ways:-
a) The bank reserves itself the right to vary terms and conditions as it sees fit.
b) These variations are imposed without discussion with the customer.
c) The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated.
d) The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer.
e) It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made.
f) There is a lack of mutuality in the bank/customer relationship. There is no reciprocity so that the customer is not permitted to impose any contractual variations on the bank.
g). The current account contract allows the bank to impose charges at in the event that the customer makes some error in the management of his account. The bank will not accept any similar liability in the event that it makes a similar error in the management of the customer’s account.
h). The bank reserves to itself a right to terminate the banking relationship at any time for any reason. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of future financial problems for many bank customers. Many banks in fact terminated Consumer accounts because they exercised their right to bring legal proceedings.
i). The bank reserves itself the right to terminate any overdraft facility and to require repayment within a time schedule of its own choosing. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of grave financial problems for many bank customers.
j) The customer is required to subsidise the running and/or operation costs of accounts other than that of my own. In so doing so the Bank‘s charging structure reverses the usual pattern of cross subsidisation by delivering heavily subsidised banking services to those with the most financial competence or resources at the expense of those with the least.
h) The contract denies the Consumer the opportunity to express that or any specific intent other than that determined by the Banks.
i) The claimant considers that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair.
j) The claimant suggests that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied? The Consumer could therefore not intend subsequent payments to be requests for assessment, and it would be to their detriment for them to be regarded as such. If the fee was argued to be for checking the Consumer's account, the Banks would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.
k) The Banks have control over the distribution of the Consumer‘s salary or benefits, and the relevant terms allow for the automatic application of the relevant Charges, with little or no notice to the Consumer.
l) The Banks, by virtue of the relevant contract, has priority over the Claimant‘s other debtors with regards to the application and payment of the relevant Charges to the Account. There is no consideration in advance of applying the charge as to whether or not the bank applies the charge.
m) Additionally, the The Banks' contracts include a right of offset by which they are able to offset an unauthorised overdraft from a Consumer's savings or other account. An imbalance exists in the contract as there is no equivalent equitable arrangement in favour of the Consumer. There is no contractual means by which additional funds, required to enable payment of a transaction and which would otherwise trigger relevant charges, could automatically be transferred from a Consumer's savings account to the relevant personal current account by the Bank.
n) The imbalance in the contract has frequently forced the Claimant into a cycle of debt, where the Relevant Charges directly or indirectly give rise to the application of additional charges to the account, without any restriction or limitation.
comment pls
(red bits at end were to go after point 11 not sure whether to include at this stage actually, i dont think so and would rather keep for the POC's, AND they need rewording to be more personal to Sue's experiences) SUE - on your spreadsheet you have £20 charges for the unauthorised overdraft and the £8 daily charges for being overdrawn - can you see on your statements what transactions incurred what charges ?
( AMENDED IN LATER POST )
This can be seen at least in the following ways:-
a) The bank reserves itself the right to vary terms and conditions as it sees fit.
b) These variations are imposed without discussion with the customer.
c) The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated.
d) The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer.
e) It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made.
f) There is a lack of mutuality in the bank/customer relationship. There is no reciprocity so that the customer is not permitted to impose any contractual variations on the bank.
g). The current account contract allows the bank to impose charges at in the event that the customer makes some error in the management of his account. The bank will not accept any similar liability in the event that it makes a similar error in the management of the customer’s account.
h). The bank reserves to itself a right to terminate the banking relationship at any time for any reason. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of future financial problems for many bank customers. Many banks in fact terminated Consumer accounts because they exercised their right to bring legal proceedings.
i). The bank reserves itself the right to terminate any overdraft facility and to require repayment within a time schedule of its own choosing. There is no requirement of “reasonable cause” and the peremptory exercise of this contractual right is a frequent cause of grave financial problems for many bank customers.
j) The customer is required to subsidise the running and/or operation costs of accounts other than that of my own. In so doing so the Bank‘s charging structure reverses the usual pattern of cross subsidisation by delivering heavily subsidised banking services to those with the most financial competence or resources at the expense of those with the least.
h) The contract denies the Consumer the opportunity to express that or any specific intent other than that determined by the Banks.
i) The claimant considers that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair.
j) The claimant suggests that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied? The Consumer could therefore not intend subsequent payments to be requests for assessment, and it would be to their detriment for them to be regarded as such. If the fee was argued to be for checking the Consumer's account, the Banks would actually be providing the same service as they otherwise provide for free and therefore no further consideration should be required unless the circumstances are materially different.
k) The Banks have control over the distribution of the Consumer‘s salary or benefits, and the relevant terms allow for the automatic application of the relevant Charges, with little or no notice to the Consumer.
l) The Banks, by virtue of the relevant contract, has priority over the Claimant‘s other debtors with regards to the application and payment of the relevant Charges to the Account. There is no consideration in advance of applying the charge as to whether or not the bank applies the charge.
m) Additionally, the The Banks' contracts include a right of offset by which they are able to offset an unauthorised overdraft from a Consumer's savings or other account. An imbalance exists in the contract as there is no equivalent equitable arrangement in favour of the Consumer. There is no contractual means by which additional funds, required to enable payment of a transaction and which would otherwise trigger relevant charges, could automatically be transferred from a Consumer's savings account to the relevant personal current account by the Bank.
n) The imbalance in the contract has frequently forced the Claimant into a cycle of debt, where the Relevant Charges directly or indirectly give rise to the application of additional charges to the account, without any restriction or limitation.
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