Help with my case vs HalifaxBOS

[melang05]

Hi,

I am trying to claim under financial hardship all my bank charges from HALIFAX. I am currently in IVA programme and my account with Halifax was closed by them. I am trying to claim £3700 ++.

Yesterday, I received a letter rom Northampton Country Court (because I used Money Online Services) and it has a General Directions Order. Please enlighten me with the following and advise me on what to do next:

1. After the Judge Name in Northampton Country Court, it was written:

Without Hearing = Pls explain.


2. It is Ordered that:
The filing of allocation questionnaire be dispensed with in this case unless the District Judge at the court of transfers orders otherwise.

Note: Any party affected by this order may under rule 3.3(5) apply to have it set aside, varied or stayed. Such a party must apply under rule 23.3 within 14 days of service of this order.


Please help me on how to deal with this please.

Thanks a lot.
Ed

[Amethyst]

Re: Help with my case vs HalifaxBOS

Hi Melang

This order simply means you will not be required to enter an allocation questionnaire and pay the relevant fee to the court.


To know what to do next we need to know:

What date did you enter your claim ?

What were your particulars of claim (the info about the claim) ?


Also for reference, any refund from bank charges may have to go into your IVA and be proportionally divided between the creditors.

Welcome to the site

Ame
xx

[melang05]

Re: Help with my case vs HalifaxBOS

HI,

Thanks so much for your reply.
Here are the info that you need:

1. February 04, 2010 - I filed it in Money Online Services
September 21, 2009 - I sent my first letter of request of refund of unarranged fees under financial hardship.

2. I am claiming all unarranged overdraft fees from 11/10/2005 until 29/11/2008 amounting to £3,123.00 and £650.08 interest.

Should you wish additional info pls feel free to inform me.

Thank you so much.

Ed

[Amethyst]

Re: Help with my case vs HalifaxBOS

Okay - the particulars of claim you have entered will need amending or the claim withdrawing.

On the order you received

1. After the Judge xxxxxx in Northampton Country Court, it was written:

Without Hearing

is that EXACTLY what is on the order ?


Has the claim been acknowledged / defended by the bank ?

Can you give me a copy of the letter you sent to the bank claiming hardship ? either pm me with it or post it here without any personal detail.

At first glane I think you may well be better going through the financial ombudsman rather than through the court.

As in hardship, did you qualify for fee remission ? If so then you shouldnt lose out by wihdrawing.

I'd expect the bank to file a defence asking for an immediate strike out to be honest - the trouble is if you let this happen it would exclude you from going to the financial ombudsman.

[melang05]

Re: Help with my case vs HalifaxBOS

Hi,

Yes, its the exact words written on it, Without Hearing. Halifax sent a defense letter to Northampton CC. I have a copy of this.

Heres the copy of my first letter to Halifax:I am writing to request that you repay all the default charges that have been applied to my account since 10th October 2005 . I do not believe these charges reflect the true cost to HALIFAX Bank of going into unauthorised overdraft.
I request that you deal with my case now rather than once the test case has ended as I am currently experiencing financial difficulties due to a relationship breakdown and the FSA waiver states that you should continue to deal with hardship cases.
My current circumstances mean that my income is insufficient to cover reasonable living expenses and meet financial commitments as they become due. My payments with my loans regularly bounce thus giving me numerous overdraft charges.. My account in T-Mobile has been cut off and suspended. I have arrears in my rent payments. I am also on IVA. On top of this, my hours of work in my current employer, xxxxxx, has changed weekly as we are going thru Official Industrial Actions 1- day or 2-days a week.
The charges total £3,123.00 plus as I believe I have been unlawfully deprived of the money I have calculated £650.08 interest at the statutory rate, the amount a court would award.
I therefore ask that you repay me the full amount of £3,773.08 I have attached a full schedule of the charges and interest with this document
I look forward for a full response to this letter within 14 days.
As for fee remission, I did not know about this, but I paid for the inital payment as I borrowed some money from my friend.
What Im trying to tell Halifax is to look into my account again and again under financial hardship but they never did. I succeeded with my claim in Abbey under financial hardship last yr. Thats why I am asking Halifax to treat me fairly and considerably.

I do hope you help me on this as I really need it at the present situation.
Thanks a lot.
[FONT='Arial','sans-serif']E[/font]

[Amethyst]

Re: Help with my case vs HalifaxBOS

Thank you.

More typing for you (sorry) - can you type up the defence from Halifax (is it about the Supreme Court Judgment and OFT v Abbey National ?? )

[melang05]

Re: Help with my case vs HalifaxBOS

HI,
heres the defense of halifax
1.it is admitted that the claimant has been a customer of the defendant to be referred to as the bank at all material times.
2. by opening an acct with the bank, the customer enters into a commercial arrangement with the bank for the provision of banking services. the bank is entitled as part of that arangement to charge for those services. at account opening a customer is provided with details of the bank charges. by using the account the customer acknowledges that the charges are incorporated into the contract. for personal customers, a number of services are provided for free, notwithstanding that they are an expense to the bank. such services presently include but are not limited to providing: cheques, bank statement, the facility to make payments by direct debit and standing order, debit cards, atms.
by maintaining the account in credit or within any limit agreed with the bank, the customer may avoid most if not all charges. if the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheques, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the banks own funds. if the bank makes payment or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract.
3. there is no breach of contract, the charge cannot therfore be a penalty, consequently, there is no requirement that the charge be a pre estimate of the banks loss
4. the customer is given advance warning of charges being imposed, statements show the charges, if any, the customer has incurred during the course of a month and which will appear as debits on the following month's statements. customers are warned by letter when they go overdrawn or over thier agreedlimit without arrangements with the bank. if the customer fails to remedy the position, and the payment such as standing orders and direct debits, are refused then again the customer is warned by letter.
5. the charges are fair and reasonable, and it is denied that they are unlawful.
6. the customer is notified of the charges in plain intelligible language at the conclusion of the contract and on wach monthyl statement. the charge are terms which relate to the price payable by the customer for a service provided by the bank, and pursuant to regulation 6 of the unfair terms in consumer contracts regulations 1999,are not subject to the assessment of fairness.
7. in the premises
7.1 the charges are for banking services and are not damages nor a penalty
7.2 the bank is entitled by contract to impose the charges, which are fair and reasonable
7.3 it is denied that the charges are unlawful or contravene any statute or regulation
8. the claimants claim is denied in its entirety. it is further denied that the claimant is entitled to the sum claimed or to any sum from the bank.


thats the content of their defense. they did not say anything about strike out application.

thanks again.
e

[Amethyst]

Re: Help with my case vs HalifaxBOS

That is brilliant thanksu

Okay at the moment all the court has done has put your claim in the pile of bank charges claims it needs to deal with.

As no law or statute has been mention at all before now you are still in a position to rebut any attempt to strike the claim out and you could go back in response to the defence with details of unfairness and hardship.

However, there will likely be further costs to this claim - for which you should be able to get remission (form EX160) as you are in hardship. Additionally the bank charges claims are no longer straightforward ' The "charges do not reflect the true cost to the bank of going into unauthorised overdraft." argument has been ruled against in the Supreme Court and there is a risk of costs being awarded against you should you lose. I;ll out the legal arguments below for you which should help you decid if you wish to continue in court or if you want to withdraw to exclude any cost risks to you and take your hardship claim through the Financial Ombudsman.


These are the basic arguments - although these are entirely untested.



Consumer Credit Act 1974 (as amended)

UNFAIR RELATIONSHIP

Only applies if you were overdrawn before April 2007 and stayed overdrawn until after April 2008 - then you can use the CCA back as far as you like.

If your account was closed before April 2008 or you werent in unauthorised overdraft very much. it is unlikely you can use the CCA

The whole contract / relationship was unfair to the Claimant under s.140a of the CCA 1974. The burden of proof rests on the bank . 140B provides that the debtor must allege that an unfair relationship exists before the creditor must show that it is not.


The Claimants must alledge and specify unfairness in order to put the burden of proof on the bank. (ie they can't just say it's unfair, prove it wasnt)

You can include issues of excessive price in the CCA Arguments as well as all the UTCCR arguments to show an unfair relationship existed.


UNFAIRNESS PER UTCCR 1999 REGULATION 5 (1)

IMBALANCE

This is again about the overall contract and YOUR (as an individual) relationship with the bank.

This is because the banks used the terms in the contract to your detriment, rather than the specific individual terms being unfair on their own.

You can't use issues of price.

You can go back as far as you like (subject to limitations act)

The Court must look at fairness of terms on their own motion in any claim.

The burden of proof is on the Bank once unfairness has been alledged.

MISREPRESENTATION 1969

This is about how the bank advertised and represented the account to you before you opened it, during opening and reinforced the impression of after you opened the account.

The banks told people that a charge would be incurred on a breach of the contract - which a reasonable person would take to mean a penalty or a punishment for doing something wrong and was an amount calculated to cover their costs.

It is now known that charges were never intended to be ancillary or act as a punishment but instead are a core part of the price of the banking services and income from charges is relied upon to cover 30% of the costs of providing free banking to other customers, or yourself at times when you are in credit.







Right back to the fos and your personal situation

you have put so far

My current circumstances mean that my income is insufficient to cover reasonable living expenses and meet financial commitments as they become due. My payments with my loans regularly bounce thus giving me numerous overdraft charges.. My account in T-Mobile has been cut off and suspended. I have arrears in my rent payments. I am also on IVA. On top of this, my hours of work in my current employer, xxxxxx, has changed weekly as we are going thru Official Industrial Actions 1- day or 2-days a week.

Have the bank asked you to complete any income and expenditure forms ?

Which bank/s are your loans with ?

How many months rent arears do you have ?

How long have you been on an IVA - are your loans included ?

Do you have an outstanding overdraft on your account at present ?

Have you asked the bank to cancel any direct debits/standing orders set up on your account ?

Is the account still open and in use ?


Sorry for the long post and multitude of questions.

Ame
xxx

[melang05]

Re: Help with my case vs HalifaxBOS

Hi there,


Have the bank asked you to complete any income and expenditure forms ? They havent asked me to complete any income and expenditure forms.

Which bank/s are your loans with ?
Barclays, Halifax, MBNA..... all of these under IVA

How many months rent arears do you have ?
Last September when i wrote that first letter, I have 2months arrears, but I have spoken to my landlord and he gave me repayment plans till date.

How long have you been on an IVA - are your loans included ?
Im on my 16th month in IVA, all loans are included in it.

Do you have an outstanding overdraft on your account at present ?
I do not have any overdraft facilities at the moment

Have you asked the bank to cancel any direct debits/standing orders set up on your account ?
Only my payment to IVA company exists in my direct debits.

Is the account still open and in use ?
Its closed last 2008.

So, are you advising me to drop this case and continue the claim using the FOS?

Thanks again.

[Amethyst]

Re: Help with my case vs HalifaxBOS

I think so although ultimately you need to make that decision after we have gone through everything.

As you are in an IVA any refund you did obtain MAY have to go to the IVA.

IVA's typically include a 'windfall' clause. Each year, your IVA is reviewed. If you come into some money, eg inheritance or improved salary, then this is taken into account and you could be required to make increased payments.
Not disclosing available funds is an offence. Typically you would be expected to pay half of any windfall into the IVA.

As the account is closed, then it is unlikely FOS would agree on hardship grounds on any refund and that will be why you don't have a income and expenditure form from the bank.

Okay some more questions (a bit historical)

With the halifax loan, did you have any issues with the loan coming from your current account causing charges ? (tried to cancel DD and they wouldnt etc that kind of thing)

Were there any specific times when the charges and application of charges or behaviour of the bank seemed particularly unfair ?

Do you have your bank statements ? (around 2002 - 2008 )


Glad you have got a nice landlord

What's the situation with the Industrial action at work and your pay ?

[melang05]

Re: Help with my case vs HalifaxBOS

With the halifax loan, did you have any issues with the loan coming from your current account causing charges ? (tried to cancel DD and they wouldnt etc that kind of thing) I think there were no issues on this


Were there any specific times when the charges and application of charges or behaviour of the bank seemed particularly unfair?
I think so.

Do you have your bank statements ? (around 2002 - 2008 )
I will try to look for any old bank statements

We are on our usual working hours now and there is no news yet of any indl actions.

My question is: after receiving that notice from Northampton CC, what do I have to do now? Do I have to submit a reply to Halifax defense?

Thanks a lot.

[Amethyst]

Re: Help with my case vs HalifaxBOS

It is likely your claim will be struck out as it stands and you will lose the fee paid.

It is standard practise for allocation questionnaires to be dispensed with in bank charges cases.

You will receive a further order from the court in due course with directions.