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Hi All,
I need help trying to insert the above letters in to your template letter below can someone assist me, I have inserted as much as I can but need a little help finishing it off,
Cheers
Webby
Dear Sirs
Thank you for your letter dated 29th July 2010 in which you state you will be ''not upholding your complaint and we will not be refunding the unarranged overdraft charges to which you refer.''
You have stated that this is due to the Supreme Court Judgment ''confirming that the bank charges are not capable of amounting to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations.''
Whilst I recognise that this is the case and that the banks terms are unable to be assessed in terms of price under regulation 6(2)b of the Unfair Terms in Consumer Contracts Regulations (UTCCR), and as indicated in the Supreme Court judgment the terms are not precluded from the assessment of fairness under regulation 5(1), I still consider the overall contract including terms which allowed you to impose charges on my account to be unfair by virtue of regulation 5(1) of the UTCCR. I also consider the terms to be in breach of section 140 of the Consumer Credit Act.
Your letter also states that ''If you think that I have misunderstood anything about your complaint, or you would find it helpful to talk through my findings please do call me”. Or “ultimately, if we cannot reach an agreement then you have the right to refer your complaint to the Financial Ombudsman Service”.
Please find the details of my concerns and your misunderstandings set out below:
I consider there was an imbalance in the contract to my detriment as consumer because;
• I consider that Natwest by virtue of the contract can choose which service they offer without consideration for or confirmation of what I intended. For example you could consider a request for overdraft and pay or simply reject payment on grounds of lack of funds. In performing these services you act as agent for the myself and therefore should have had regard to the Consumer‘s intent. The Consumer‘s intent may be for the request to be facilitated if there are sufficient funds, to be rejected if there are not or to be asked for confirmation (where practicable) otherwise. However the contract denies the Consumer the opportunity to express that or any specific intent other than that determined by the Banks.
This is evidenced by the attached charging schedule indicating all charges applied to my account
• I consider 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.
• I suggest 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.
This is evidenced by the attached charging schedule indicating all charges applied to my account.
• It is apparent that I am 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.
• I contend that you have control over the distribution of my salary or benefits paid into the account, and the relevant terms allow for the automatic application of the relevant Charges, with little or no notice to the Consumer.
I suggest 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.
This is evidenced by attached charging schedule indicating all charges applied to my account
• In my experience Natwest, by virtue of the relevant contracts, have priority over my 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.
• Additionally, the Natwest contracts include a right of offset by which they are able to offset an unauthorised overdraft from my 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 my savings account or other account to the relevant personal current account by the Bank.
I suggest 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.
This is evidenced by attached charging schedule indicating all charges applied to my account
• The relevant terms have frequently forced me 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.
I also consider that your bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between myself and your bank. In fact your terms & conditions make no reference whatsoever to the charges relating to the provision of any 'service', which was HSBC's adopted pleaded position during the test case.
The relevant terms at the time I opened my account were;
• 2003
7.2 You must always keep your current account in credit unless we have agreed an overdraft with you.
7.3 You must not go over any' overdraft limit that is agreed with us unless you get our agreement first.
• ANY OTHER TERMS APPLICABLE TO THE PERIOD YOU HELD YOUR ACCOUNT
This belief was compounded by letters you have sent me at times when my account has incurred your charges which stated;
• 13th February 2004 ''We will deduct £30.00 from your account to cover the cost of calling this standing order/direct debit''
This misrepresentation appears to have been recognised by yourself in September this year when you informed customers;
• September 2008 '' In the Terms and Conditions prior to September 2007 the above stated explanation would not have used the terminology of 'informal overdraft' they would have described the fees being incurred as default charges as the account is not running within its agreed limit. In the most recent Terms and Conditions the charges are no longer described as default charges. I apologise for any confusion cause to yourself regarding this matter''
I feel this was unlawful under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which your bank knowingly benefited.
• Natwest misrepresented that the relevant terms were penal as opposed to contracting to provide services, or
• Natwest were aware of your Customer‘s 'mistaken belief' that their relevant terms were penal but failed to correct this, to the detriment of the Consumer but to the benefit of the Banks, alternatively HSBC were aware that the relevant terms were penal in nature but realised they could argue they were in exchange for a package of services and misrepresented to the court accordingly.
In any case, the conduct of my account has relied on the misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and I contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services.
Therefore I request you continue to consider my complaint and refund charges imposed under the contract between 1994 and 2009 as previously requested.
Yours faithfully
Customer
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