ConsumerWiki - FAQ

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Contents

Introduction

Read through this and it will save you a lot of tedious posting on the forums and will save a lot of repetitive replies.

Once you have the basics in mind you will find that you will be able to frame your questions and enter into discussions in a much more profitable way.

Legal FAQs here do not apply to Scotland (Civil procedure)

Scottish FAQs are in preparation.



Please be aware that all advice here is provided informally by concerned volunteers. This group, The Consumer Forums(through their campaigning groups - The Consumer Action Group & The Bank Action Group - Fighting unlawful practices and bank charges.) holds out no particular expertise or qualification. It is not responsible for the views of it's Users who post here. The Group makes no guarantee of the accuracy of any of the advice or information which is provided on these pages and you are advised to apply your own judgment at all times.

The The Consumer Forums are merely a campaign and support group.


If you want to understand litigation in the County Court small claims track, then we now recommend Patricia Pearl's book: "Small Claims Procedure: A Practical Guide."

This book is excellently laid out and is a thorough but readable guide for the ordinary person who wants to bring any kind of claim in the County Court.

See a full review here

Can I Claim?

Q. I have been charged (£20, £25, £35 etc...) by my bank/credit card company for going over my agreed overdraft limit. This was entirely my own fault. Do I still have grounds to start legal proceedings against them for recovery?

A. The law is very clear on this. If you have been penalised for a breach of contract by means of disproportionate penalties, regardless of how the breach came about, then you may have grounds to recover your money

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Q. But I have agreed when I opened my account to pay charges on returned direct debits etc and exceeded overdraft limits.

A. Yes, you did. The banks are entitled to apply these charges, but not at an excessive rate. Penalty charges must be calculated to reflect the losses sustained by the banks when you cause them a problem. No more. Contractual terms must be applied in a reasonable and lawful way. Banking contracts must be operated within the law.

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Q. I get charged a £5 (£10, £15) fee every month for an overdraft on my current account. Can I get these back too?

A. If this is a service you have agreed to, then no - there is nothing unlawful about charging for a service provided.

What about £12, can they charge that?

A. NO. The Office of Fair Trading (OFT) issued a directive to credit card companies to set a point at which they (the OFT) would intervene on behalf of the consumer. They did not state that £12 was lawful - in fact they stated that only a court can decide. "A fair default charge should not exceed a reasonable estimate of certain limited administrative costs which the credit card issuer reasonably expects to incur as a result of default"

In other words - reclaim the full amount unless they are willing to show the evidence of what it does cost.


Likewise recent suggestions that Bank charge claims will have to allow for 12.00 charges are untrue...go for the lot...unless they prove otherwise.

Can I PM/Email Admin/BankFodder/Dave with regards to my specific case?

Our 'admin' email address receives about 2-3 thousand emails per day with requests for help. Most of these are ignored, not through choice but simply because there are not enough hours in the day. We have families and jobs. If your case is out of the ordinary or is extremely urgent, then you can attempt to PM or email, but due to the sheer volume of requests we cannot guarantee a timely response.

It is far better to start your own thread where many people can see your progress.

Will Claiming Cause Me Problems?

Q. Will suing my bank affect my credit report?

A. No - unless the Bank closes your account - see below.

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Q. Will the bank close my account?

A. Under 7.7 of the 2008 Banking code, a bank cannot close or threaten to do so as a response to a valid complaint that you have made. It is therefore unless you are acting in a manner which may lead to closure of your account, like being threatening and abusive to staff members, then your complaint should not be reason alone to close your account.

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Q. Are there any other risks?

A. There have been instances where the banks have closed or threatened to close accounts by way of retaliation. There is always a risk involved in taking someone to court. If you are in any doubt of your claim, you should contact a qualified professional.

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Q. Can I stop them closing my account?

A. Although there are some legal arguments against this kind of retaliation, it would be very difficult at the moment. You would normally only be able to try and take action about it after the account closure. We are in the process of testing the legalities of account closures, especially with the Alliance & Leicester.

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Q. I was charged on an account that I have closed XX years/months ago, can I still claim for my money back?

A. Yes, regardless of if the account is open or closed, you can claim.

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Q. Can I claim back for more than 6 years?

A. Maybe. There is a separate thread on this in this forum. The statue of limitations states that you can only go back 6 years. However, it also states that if you have had the truth held from you resulting in your not making a claim earlier, that you can claim from the date that you became aware. If you are unsure, you should only claim for 6 years.


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Q. I am so angry - when this is sorted out, should I close my account?

A. No - don't close your account. It makes no difference to your bank. Get an account with another bank by all means but do realise that all the banks are the same when things get difficult. Keep your account. You might find it useful one day. Keep a couple of pounds in it and then just don't use it. Having multiple accounts may give you some flexibility.

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Q. Is there any limit to the amount that I can claim?

A. No. If you keep your claim value under £10,0000then the case should stay on the County Court Small Claims Track. This way, if you lose, you shouldn't be liable for costs. However, there are actually some advantages to claiming above £10,000- this is discussed in greater detail on the forums.


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Q: We have a joint account, do we both need to apply/sign when reclaiming?

A: If you both have authority, no.

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Are there any preparatory steps which I should take?

A: You would be well advised to open at least one bank account elsewhere (you will see this referred to on the site as a "Parachute Account"). If your account is closed, it is likely that the Banks will make an entry which could affect your credit score and make it difficult to get even a debit card in the future. Open a new account when your credit rating is still intact. This will allow you to move smoothly to a different bank if you want. This will reduce the leverage which your present bank has over you.

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Q. Do I have to write a letter to my bank?

A. Yes, but we have prepared templated letters for you. See our "Bank Templates Library".

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Q. Do I have to put "without prejudice" on the top of my letter?

A: No. Putting "Without Prejudice" at the top of a letter means that the contents of that letter cannot be disclosed to a judge in the course of the hearing of the case - so it may harm your case if you do. If you really think that you are saying something which you don't want the judge to hear then by all means put "without prejudice". However, most often you will be pleased that the judge knows the whole story. It will tend to be the bank that wishes to keep information hidden. If a letter from the bank or their legal council is marked 'Without Prejudice' you must not show it to the court, unless a judge asks to see it.

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Q. Can I use email?

A. According to the Civil Procedure Handbook, email is an acceptable way of contacting a second party. However, the banks are not keen on it and don't normally reply with emails, so standard mail has become the norm.

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Q. Do I have to negotiate with my bank before I take action?

A. You should claim and litigate reasonably so as not to incur unnecessary expenses for yourself or the bank or cause unnecessary trouble for the court. This does not mean that you have to phone them. An acceptable negotiation process will be to use our templated letters - the "Preliminary Approach for Repayment" and the "Letter Before Action"

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Q. Do I have to send a letter before action?

A. Yes, you should give the bank written notice that you will be suing them.

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What if I have to sue the bank?

Q. How much notice should I give the bank that I am going to sue them?

A. Both of our letters give 14 days for a response. Together, these give the banks at least 28 days to settle your claim - an acceptable timescale for a court.

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Q. I'm worried about costs if I lose the case.

A. If your claim is less than £10,000 then it will most likely be conducted within the Smalls Claims procedure of the County Court. Costs are not awarded either to the loser or to the winner unless the case is highly exceptional. The only costs you might lose are the court fee for issuing your claim form and the reasonable travel expenses of the defendant. If you win, the only costs you will receive will be your summons fee and your reasonable travel expenses.

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Q. Supposing I have a lawyer. Can't I get the costs of that legal help?

A. No, but neither can the Defendant. You should NOT need a lawyer.

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Q. Can I claim interest?


A. When you put in a court claim, and not before, you should claim interest at the statutory rate, which is currently 8%. You must add a section to your claim in the following way: "The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% per year from (date when the money became owed to you) to (the date you are issuing the claim) of £XXX - (enter the amount) and also interest at the same rate up to the date of judgment, or earlier payment, at a daily rate of £X.XXp (put in daily rate of interest)"

You will need to work out the interest you are owed up to the date you start the claim. You first need to work out the daily rate of interest. Using a calculator, do the following: 0.00022 X the amount of your claim – this gives you the daily rate of interest. There is a guide within the N! Particular of claim template.

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Which Track

Q. When referring to the "track" of the County Courts, does the £10,000 limit include interest and costs?


A. It includes interest. You can claim up to £10,000 net of costs but including interest. However, in determining court costs only, the value of your claim will be the charges total PLUS any interest claimed. If this is the case, then court costs will be set at £250 rather than £120. Remember though, that these court costs will be reclaimable should you win....

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How or Where do I start my claim?

Q. How / where do I start my claim?


A. You have 3 options.....

(1) Go to your local County Court. Ask for an N1 claims pack and the forms required will be made available, usually with some guidance notes.


(2) Download a PDF version of the N1 form from our Templates Library.

In both of these cases, you can use the "Particulars of Claim" - also available in our Library - to complete the forms. Make 3 copies of this form - 1 for your own records and 2 to give to the court.

We also advise submitting copies of the 'schedule of charges' detailing dates, amounts and interest accrued with these forms - even if you have previously sent them to the bank.


(3) An alternative is to start your action on-line at www.Moneyclaim.gov.uk You will need a credit card to pay the summons fee. The space given for the Particulars of Claim in this method are limited and you should seek advise when either altering our templated version or producing your own.

This method can ONLY be used if money is the only thing being claimed. However, you must make sure that the bank has received a schedule of your charges at least twice during your preparatory correspondence.

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Q. What happens if I make a mistake in my summons if I do it on-line? Can I correct it?


A. Moneyclaim have a very helpful help desk. You can phone them in office hours and they will tell you what to do. Their number is 0845-601 5935 - They will not give you legal advice.

Which Address

Q. Where should I address any of the standard letters?


A. You can send it to any of their registered addresses. Sending it to the branch or the Head Office is the norm. Addresses can normally be found in each of the specific bank forums.

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Q. I have sent a Data Protection Act request. When does the 40 day period begin?


A. The Data Protection Act request takes effect when a fully paid request reaches the appropriate person in the organisation. If the request is correctly addressed then you can deem 1st class mail to have been delivered in 2 working days. To ensure that they cannot deny having received your request, it is advisable to send by recorded delivery.


I Have Been Defaulted

Q. I have been "defaulted" by my bank. What can I do?

A. This can cause serious problems for a long time. You should try and avoid this if you can, but this will normally have happened before you even begin to start recovering your costs. Users are currently testing the legality of Default Notices placed as a direct result of charges imposed on the account. Read our Data Protection Act section for more info and guidance.

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Q. I'm sure it was the penalties which put me into a position where I was defaulted. Does this mean I can get it removed?

A. We believe this is an abusive practice by the Banks. If you decide to recover your charges then when they are offered back to you make sure that part of the deal is that the bank agrees to remove the default entry entirely - not just enter a correction or say that the default has now been satisfied.

As a 'general' rule, if your charges total was either equal to, or in excess of, the value of the default, then it would be reasonable to assume that the default entry was unfair.

If the bank refuses to do this then you should refuse to settle and proceed to court. It is most likely that the bank will concede to your request. If they do, then get it in writing immediately and make it clear that you will not interrupt the claim process until it has been done. There is one report of the Nationwide having reneged on its promise to remove the default. If your settlement is subsequently recorded by the judge, make sure that this aspect of default removal is recorded as being part of the deal.

You can let the bank know that if you are proved right in court, that you will take the view that their default notice is defamatory and is a breach of their duty of trust. This may encourage them to meet all your conditions.


IVA arrangements

Q. I'm currently on an IVA/debt repayment plan (CCCS or similar). Do I have to notify the Debt Management company that I am doing this? It's not really a 'windfall' is it?

A. However, we have heard of reports where a Debt Management (DM) company have broken off the agreement because of failure to notify of charges being returned. I think it's best to let the DM company know exactly what you are doing from the start. Be honest with them. They have been with you (well the best ones are ;-) - CCCS for instance).


Business Accounts

Q. I have a business account. Can I, or my company, still get penalty charges back?

A. Yes, but on a slightly different basis. To do so, you need to rely on the Common law of contract and the Unfair (Contracts) Terms Act 1977 rather than the 1999 Unfair Terms in Consumer Contracts Regulations, because these deal with business to consumer rather than business to business relationships. If you are trying to recover business charges DO NOT cite the 1999 regulations in your court claim. An amended version of the standard initial letter for businesses is included in the library.


Allocation Questionnaire

Q. I started a claim a few weeks ago. The bank have put a defence into the court and I have now received an Allocation Questionnaire. It asks me to complete it and send a cheque for £100. Is this right?

A. Yes, but only if your claim is for over £1500. Don't worry, you will get this back from the bank should you win. If you cannot afford it - phone the court up, they are very sympathetic and may well allow you to pay later. A guide to completing the Allocation Questionnaires is also in the Templates Library.

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Q. The court has said they are dispensing with the Allocation Questionnaire, do I still have to pay the £100 fee?

A. Yes. The fee is payable within 14 days after the despatch of the notice of allocation to track.

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Q. The bank has responded and left me no choice - I am now prepared to go to court. Where should I address the court papers?


A. You can send it to any of their registered addresses. Sending it to the branch or the Head Office is the norm. Addresses can normally be found in each of the specific bank forums.

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Q. What if my bank actually lets me get my case to court (by not giving my money back after a claim has been issued)? Will this set a precedent if I win and stop people having to pay these charges ever again?


A. No, precedents cannot be set in the County Court. However, it would be OK to bring this case to the attention of the judge in other cases in an attempt to influence his decision.


Can I claim Compensation?

Q. Can I claim compensation from the bank for the stress that their charges and subsequent debt have caused me.

A. You would have to provide specific proof of distress caused in order to claim this, which is extremely difficult and rare. It's probably more stress than it's worth.

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Q. Is it OK to completely ignore the section labeled 'FAQ' and just ask the same question as everyone else has before me?

A. Yes, of course. The Admins and Moderators and Site Helpers would like nothing more than to repeat themselves several hundred times per day. We live for it, really we do. It's not like there's more pressing issues at hand - or people with questions that haven't been answered here.


Can I Change My Username?

We recommend people don't register on the site with their real names as their USER ID. If you have and would like to change it please PM alanfromderby or email admin@consumeractiongroup .co.uk.


Give credit where credit is due


Page Created By Me01273 00:05, 31 May 2007 (BST)

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