Zsazsa's Mum v Lloyds - Mercantile

[zsazsa]

Been awhile Peeps!

I've been claiming for my mum against Lloyds & they have had NO CONTACT/CORRESPONDENCE at all directly with her - until now there's a mad rush & /she's/I've received this letter ONLY TODAY.

I've successfully claimed & won against HSBC & HALIFAX so started on my mum's. The claims all progressed as they ought & then total silence after the MCOL was filed - silence all the way infact. There were several of these claims against Lloyds filed at the same time & they were all allocated to local court - Leeds in this case & Judge Kaye QC requested they all be transferred to the Mercantile Court & he heard them en masse. Nice!

Anyway - mad rush from Lloyds solicitors for tomorrow - I was fully expecting to go to court for the directions hearing & have got a bundle together to argue the case - with some small trepidation on my part but hey ho bring it on anyway! However - as the letters below state they've paid up the two sets of monies, without question or any reference to my mum, again complete silence & no correspondence at all. She hasn't used the account at all since the claim started & so didn't actually relaise any monies had been paid in until she phoned to check today.

Can anyone give me any advice now at the stage please - It's quite urgent to say the least & if I'm not attending tomorrow I'll need to reply to the court ASAP.
Many thanks,

Zsazsa - Letters Below

SECHIARI, CLARK & MITCHELL – SOLICITORS S. W. Morris
Department SO, PO Box 499, Upper Ground Floor, 1- 5 Queens Road Quadrant, Brighton BNl Ms. P. J Richardson
3XJ, Telephone: 01273 205381 Fax Number: 01273 745356 DX 36675 Brighton 2.T.H.A.Whetcombe
Our Reference: SO/MFT/Mercantile/Graham/8262 Tuesday, 24"' April 2007
Strictly Private & Confidential ZSAZSA’s MUM, Ilkley
West Yorkshire
URGENT
Strictly Without Prejudice Confidential and Privileged
Dear Madam,
In the High Court of Justice Queens Bench Division Leeds District Registry
ZSAZSA’s MUM,-v- Lloyds TSB Bank plc Claim Number: 7LS 40210 (Formerly 7QZ 10064)
We refer to the above matter and have been advised by the Leeds Mercantile Court that a Case Management Conference hearing has been sche,duled, for Thursday, 26"' April next to hear this matter.
This letter is marked `without prejudice' and is `confidential and privileged' which means it will not be produced in Court, and is confidential between you, us and the Bank. Therefore, you are required not to show this letter to anyone or reproduce it in any way that compromises the parties when entering settlement negotiations.
As you are already aware, the Bank intends to defend these proceedings on the grounds that the legal basis for your claim is incorrect.
l. As a matter of law, whether or not a clause providing for a payment is a penalty only arises where there has been a breach of contract.
2. When you asked the Bank to make payments from your account that would have caused you to exceed any overdraft you had previously agreed with it, you were requesting it to agree to a new or higher overdraft. Your request to the Bank to make a payment was not a breach of contract; nor were you in breach of contract when the Bank either agreed to make that payment, or declined to do so.
3. The Bank was entitled to charge a fee for, amongst other things, urgently considering your request and for telling you it had agreed to it; alternatively for telling you it had not been agreed to it and returning the payment through the clearing system.
4. You were aware of the existence and amount of the fees that the Bank charged for these services, and they were properly due under the contract between you and the Bank.
5. Your claim for repayment of these fees is therefore misconceived.
That said, the Bank is, without prejudice to the R osition set out above, willing to pay you the £3,176.00 (minus the sum of £720.00 already paid to you on the 5 February 2007) representing the actual charges applied to your Classic account, together with interest of £864.98 and the Court Fees of £250.00 in full and final settlement of your claim. This will be paid on the following basis:
1. The above amount(s) (£3,570.98 in total) will be credited to your Classic Bank account by the Bank.
2. The payment will be in full and final settlement of your claim.
3. The terms of this agreement are confidential to the parties and their legal representatives.
4. You agree to maintain your accounts with the Bank within your agreed limits and in accordance with the terms that govern the account.
5. You can avoid these fees in future if you agree an increase in your overdraft with the Bank before you try and make payments that would take you over any previously agreed limits. If you do not do so, you will again incur these fees.
6. You make contact with your local Lloyds TSB Branch Manager on 0845 3000 000 to arrange a review of your account. The Bank wishes to avoid further situations which give rise to disputes. A review may be useful to consider whether your current banking arrangements are the most appropriate for your needs.
As you will see, this does not actually settle your claim in full as there appears to be a discrepancy of £1,437.51. Therefore, in the event that the sum of £3,570.98 is not accepted by you, we have today written to the Leeds Mercantile Court (copy attached) asking for the following Order:
This claim is allocated to the Small Claims Track.
1. The Claimant shall by [insert date] file and serve:
A schedule setting out each charge repayment of which is being sought, showing the date, amount, and alleged reason (if any) for that charge being made.
b) Copies of any statement or other document relied upon as showing that each and every such charge has been made.
c) A statement of her evidence, if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties or otherwise.
2. The Defendant shall by [insert date] file and serve a response to the Claimant's schedule, stating in respect of each item claimed:
a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon.
In light of the pending Case Management Conference, we can confirm that the said sum of £3,570.98 in full and final settlement of your claim was credited to your Classic today by our Client under the reference "Dep B.C. RFND 7QZ10064" which will appear on your Bank Statement.
Please ensure that you quote the new claim number as quoted above when communicating directly with the Leeds Mercantile Court.
Kindly acknowledge safe receipt of this letter and its enclosures ensuring that your quote the above reference.
Yours fait
Sechiari Clark & Mitchell


Enclosures
SECHIARI, CLARK & MITCHELL – SOLICITORS S. W. Morris
Department SO, PO Box 499, Upper Ground Floor, 1 - 5 Queens Road Quadrant, Brighton BN1 Ms. P. J Richardson
3XJ, Telephone: 01273 205381 Fax Number: 01273 745356 DX 36675 Brighton 2. T.H.A.Whetcombe
Our Reference: SO/MFT/Mercantile/Graham/8262 Tuesday, 24`h April 2007
Leeds Mercantile Court, Queen's Bench Division Leeds District Registry The Court House
1 Oxford Row Leeds, LS1 3BG
URGENT
DX 703016 Leeds 6
For the urgent attention of Chris - Listings Officer
Sent by way offacsinzile number 0113 306 2392 and Document Exchange - pazes 1/2
CASE MANAGEMENT CONFERENCE SCHEDULED FOR THURSDAY 26 TI; APRIL 2007 AT 10.30 AM
Dear Sirs,
In the High Court of Justice Queens Bench Division Leeds District Registry
ZSAZSA’s MUM,-v- Lloyds TSB Bank plc Claim Number: 7LS 40210 (Formerly 7QZ 10064)
We refer to the above matter and in particular to the Case Management Conference due to be heard before His Honour Judge Kaye QC on Thursday, 26`h April next at 10.30 o'clock in the forenoon.
Following our Client's instructions in this matter, we are writing to advise the Court that this claim was settled in part directly with the Claimant, namely ZSAZSA’s MUM, today, 24`h April 2007 and in the sum of £3,570.98. A payment of £720.00 was also paid to the Claimant on the 5`h February 2007 making a total payments of £4,290.98.
As the Court will see this actually does not settle her claim in full, resulting in a discrepancy of cira £1,437.51.
It if is helpful, the sum of £4,290.98 already paid by the Defendant is calculated as follows:
a) £3,176.00
b) £ 864.98
c) £ 250.00
Sub total £4,290.98
d) -£720.00
Total- _ 3,570.98
representing bank charges applied to the Claimant's Bank account for the period 10"' December 2001 to 2°d January 2007 inclusive;
representing interest at the statutory rate of 8% for the period 10`h December 2001 to 24"' April 2007 inclusive;
representing the Court fee, and
representing the payment already tendered to the Claimant by the Bank on the 5`n February 2007.
If it is the Claimant's intention to claim further sums from the Defendant Bank, we would respectfully ask the Court for the following direction to be made:
This claim is allocated to the Small Claims Track.
The Claimant shall by [insert date] file and serve:
a) A schedule setting out each charge repayment of which is being sought, showing the date, amount, and alleged reason (if any) for that charge being made.
b) Copies of any statement or other document relied upon as showing that each and every such charge has been made.
c) A statement of her evidence, if such is to be relied upon as tending to show that the alleged charges have been made, or that they are irrecoverable as penalties or otherwise.
2. The Defendant shall by [insert date] file and serve a response to the Claimant's schedule, stating in respect of each item claimed:
a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon.
In light of the above, the Bank will not be attending the forthcoming Case Conference Management Hearing
We would be most grateful if you would be kind enough to place this letter before His Honour Judge Kaye QC in readiness for the said hearing and apologise for our non-attendance. No disrespect is meant to this Honourable Court, or indeed towards the Claimant, by reason of the Bank's non-attendance, which is purely motivated out of a desire to keep costs of this matter to a minimum.
We have today written to the Claimant advising same and requesting that she notifies the Court that the sums of £720.00 and £3,570.98 did indeed reach her Bank account held with Lloyds TSB Bank plc on the 5`h February and today 24th April 2007 respectively.
Kindly acknowledge safe receipt.
Yours faithfully
Sechiari Clark & Mitchell
IMPORTANT NOTICE
The information contained in this fax is intended for the addressee(s) named above only. It may contain privileged and confidential information. (f you are not the addressee you must not copy, distribute, disclose or use any information the fax contains. If you have received this fax in error please telephone us and post the original back to us. We will reimburse you for the phone call and postage.

[zsazsa]

PS - I know it says confidential - but she hasn't signed anything saying she'll be bound to that at all & obviously this is just between friends on here - but if I need to take those letters off can someone tell me sooner rather than later please!

[nicsussex]

Hi - not sure what you are asking here. Looks to me that they have settled - however what does the discrepancy of £1437.51 consist of?

[zsazsa]

Hi Nicsussex,

Thanks for helping me - basically the hearing tomorrow is for directions & although they've settled part of the claim, the oustanding amount is actually #1928.66 & that consists of a proportion of charges, the 8% statuary interest that can be applied at MCOL stage & the aq fee of @150.00.

They say they're not turning up anyway, but erring on the side of caution I will be under the circumstances - & I'll have the relevant papers/correspondence with me just in case - is this the correct thing to do?

Cheers - ZSAZSA

[John72]

Hi

Why are they disputing £1437 of the charges? Were they either calculated wrongly by you (doubtful?) or beyond the six year period before which they claim the limitation act may apply?

J

[zsazsa]

Just checked - they're ignoring the charges from 26/01/2001 to 10/12/2001 inclusive & have also ignored the interest associated with them & the aq fee of 150.00...

Zsazsa

[John72]

Well, no problem with the aq fee - they should pay that to you. On the earlier charges you will need to plead that the six year period under the limitation act commenced only on the publication of the OFT report in April 2006. Prior to that LTSB had concealed the true nature of the charges they were making and you were thus unaware that they were unlawful.

[Bookworm]

Well then, they haven't settled in full, have they? Therefore, you have every right to go to court for the rest.

They haven't stated why they have disregarded the 2001 charges, so you shouldn't have to argue Limitations. As for the conditions, make sure you say to the judge that you do not feel that as the defendant, they have the right to impose any conditions on your claim.

[Bookworm]

Originally Posted by John72

Well, no problem with the aq fee - they should pay that to you. On the earlier charges you will need to plead that the six year period under the limitation act commenced only on the publication of the OFT report in April 2006. Prior to that LTSB had concealed the true nature of the charges they were making and you were thus unaware that they were unlawful.

I disagree. They haven't brought up SOLA as a reason for disregarding the 2001 charges, it's not up to claimant to bring it up. If the bank wants to argue statute-barred, they should have flagged it up in their defence, not just remove part of the charges without saying why.

Furthermore, since they are not actually admitting the charges are penalties, but instead are settling (they don't say why, funnily enough, they're just settling!), usually as a gesture of good will or because it would be uneconomical to defend, then statute-barred doesn't come into it.

[zsazsa]

Thanks for this - the other thing I've realised though is my major cock-up - I've posted on the thread for the directions hearing in Leeds tomorrow as well to try to get an answer.

Because this is the first & only correspondence I've received from LTSB since filing MCOL (apart from copies from court with defence & notification of transfer to Mercantile Court), I didn't realise amongst the small print I had to file a CMI sheet, & so didn't - although neither did LTSB send a copy to me of theirs, or any notifications regards the payments etc.

So how badly do you think this oversight on my part will affect me? I can take form in tomorrow with me & speak to someone etc but do you think my case will still be listed? I didn't contact court this afternoon (post only comes pm) to say bank had settled because they haven't settled in full at all & my claim still stands for remainder.

Thanks,

Zsazsa

[Bookworm]

Erm... Don't know, I'm not totally au fait with the ins and outs of Mercantile.

I'll see if there's anyone around who can answer, but it's a bit 11th hour, so no guarantees... Worse case scenario, throw yourself at the mercy of the court, so to speak, litigant in person, well, representing your ol' mum an' all that... :o

[caro]

I agree with Bookie, although I haven't read the rest of your thread. I get the impression that Leeds are quite keen to get the banks into court, and it is only a directions hearing, so the cases won't be heard tomorrow, so I think you may be ok.

[zsazsa]

Thanks everyone - I've done my CMI, boned up for last few hours - thank heaven for costs eh!! I realise it certainly is 11th hour & don't intend to be caught short again like this - maybe tears will help if all else fails & a lot of humility to the Court staff!

Fingers crossed & thanks again - I'll keep you posted - should be a good turn out tomorrow if nothing else - how exciting!!:o

Zsazsa xx

[caro]

If the judge is a woman I'd give the tears a miss. I've a feeling it won't be a problem. Just be honest.

Go in, say they have paid £720 and £3,570.98 and knock it off the earliest charges, redo you schedule showing these paid and what is left owing, add below this the fees etc.

Print the draft directions from this site, and just hand them to the judge if you get chance.

[zsazsa]

Brilliant thank you so much zooman - will do!

Zsazsa

not really, I hope it helps someway, I wish i had seen this earlier tonight we could have had a chat on the phone.

Good luck tomorrow, and don't forget this http://www.consumeractiongroup.co.uk...tml#post543210 I have linked to doc, but if it the 1st time you have seen it have a read of the 1st posts of the thread to understand it.

although in CAG Chat now if you want to pick my (and others) brains

[ChloeJane]

Hi there,

Sorry to post so late but as I said in chat, I would do so for the morning.

So logical arguement I hope prevails!

A new avenue for the bank - Mercantile Court - which is the court that primarily deals with contracts etc. So they are trying to argue that under their terms and conditions -(contract) they are correct.

It won't work and they have no arguement but here goes.

The directions hearing is just that. Further directions before the matter is heard - where in this case I believe that if they do turn up, the judge will order that they provide the information that may way stitch them up! So I would expect a quiet courtroom and a cheque!

To argue the points that they made.


l. As a matter of law, whether or not a clause providing for a payment is a penalty only arises where there has been a breach of contract.

There is a clear logical arguement here. Under the terms and conditions of your contract there is a breach in that no where is it clearly a balance fair contract.

That you believe that the contract is deemed to be unfair under the 1999 UTCCR (terms of unfair contracts legislation.)

To have not fully provided a full list of charges to you with a breakdown of how the figures are derived, despite several requests to date, knowing them to be excessive and unfair and proven unnaceptable or reasonable under the OFT guidelines.

(promise to get out contract law manuals for hearing!)

2. When you asked the Bank to make payments from your account that would have caused you to exceed any overdraft you had previously agreed with it, you were requesting it to agree to a new or higher overdraft. Your request to the Bank to make a payment was not a breach of contract; nor were you in breach of contract when the Bank either agreed to make that payment, or declined to do so.

Arguement.

Contracts to be fair are set to protect both parties with somewhat less liability for the contractor!

K-Zone law -- Unfair contract terms: what a mess

Good link above to the basics of contact law and you could pick them apart!

The bank is in breach of contract for the inconsistency of whether a payment is or is not honoured or rejected and is weighted unfairly to their own advantage. Penalty system - penalised if you go over as charges for exceeding the overdraft - penalised if they declined.

You are disadvantaged either way and the win win scenario again for the banks. Ask for proof or original terms and conditions and where it was that you were made fully aware of these and what charges costs increases have their been to these to date!

3. The Bank was entitled to charge a fee for, amongst other things, urgently considering your request and for telling you it had agreed to it; alternatively for telling you it had not been agreed to it and returning the payment through the clearing system.

Arguement

Who considers these requests. Ask for proof of manual entry or is it a computer generated consideration.ie. computers sees and rejects automatically for over a set limit on your account. Argue that proof is required for all manual and computer generated tasks and of last years charges, times and dates for when data was processed, to justify the costs accordingly.

(This should have them in knots as its computer all computer generated!!very little repsonsability is held at branch level and only daily or weekly reports computer generated are sent, so it further justifies that costs are invalid, unjust, not justified.)

4. You were aware of the existence and amount of the fees that the Bank charged for these services, and they were properly due under the contract between you and the Bank.

Arguement

That you entered into a contract with what you believed a reputable and honest Bank/organisation and that the full charges costs and services were not made known clearly nor have you initialed them as part of clear contractual terms and rightfully would have questioned these for justification at the start. That when you sign for the account and terms and conditions, you were on trust and understanding that the terms of the contract were fair and reasonable.

Argue that fair and reasonable costs for a service and charges you have no objection to, however that despite many requests for justification of a fair contract, for terms and conditions they have to date failed to provide these to your satisfaction.


5. Your claim for repayment of these fees is therefore misconceived.

Argue - that the issue is not about fair fees or charges but as they have breached the contract by law in that under the 1999 Unfair terms and Contract Conditions it states that

All `unfair' terms. Terms are unfair if they significantly imbalance rights and responsibilities against the consumer". You can prove this with the above and their win win scenario.


The rest is....................

You can avoid these fees in future if you agree an increase in your overdraft with the Bank before you try and make payments that would take you over any previously agreed limits. If you do not do so, you will again incur these fees.

Argue or question again does this give advantage to you or the BANK!

6. You make contact with your local Lloyds TSB Branch Manager on 0845 3000 000 to arrange a review of your account. The Bank wishes to avoid further situations which give rise to disputes. A review may be useful to consider whether your current banking arrangements are the most appropriate for your needs.
As you will see, this does not actually settle your claim in full as there appears to be a discrepancy of £1,437.51. Therefore, in the event that the sum of £3,570.98 is not accepted by you, we have today written to the Leeds Mercantile Court (copy attached) asking for the following Order:
This claim is allocated to the Small Claims Track.

You have a defence to their arguement.

I do hope this makes sense as is only small grasp and late night rant to give you a bit more for when you turn on your PC!

I would do more justice but at 3am when I began, little logic left.

Contract law is somewhat in need of a very big revamp but you would have a good arguement if they tried to rely on your contract as arguement as the terms and conditions are unfairly weighted.


Best of luck!

[zsazsa]

Chloe - Just printed out to read on way - you STAR - Thank you - talk later

Zsazsa xx