Guide to reclaiming bank charges

(Scottish Claimants should read Scottish Step by Step)

Introduction

This Consumer Forums guide will help you to recover YOUR MONEY, which has been unlawfully taken from your account.

If you are having doubts about claiming YOUR MONEY back then look at the Survey Results - to date the Banks have paid out over £11 million to 7748 people across the UK (and that Is ONLY those who have taken the trouble to complete the Survey - it is probably three times that figure or more).

We would like to expand this winners club so if you would like to become a member just follow the steps in here.

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Preparation

Remember When Your Mother Used To Say

"Forewarned Is Forearmed" Well - It's True.

Make sure you read all the Frequently Asked Questions and understand what you are about to do. This may seem a little horrific to begin with but don't let yourself be put off by this.

We are all your friends now and we have all been in the same boat (read some of our threads - this will also help you).

Also study the letters in THE LIBRARY to familiarise yourself with them.

Reading the TUTORIALS is a must - If you want to be fully prepared!!!

Step 1 - Getting a list of your bank charges.

Send the Consumer Forums Subject Access Request letter asking for a list of charges made on your account for the past 6 years (or for the time you have had the account if less than 6 years).

We try not to use the phrase "copy statements" since these are not technically covered by the Data Protection Act. The Data Protection Act covers your transaction records. Banks, however, find it much easier to supply you with copy statements. Earlier information may be supllied on Microfiche printouts.

Remember

The data should be supplied within 40 calender days, ONLY complain to the Information Commissioners Office if the 40 days has expired and not before.

If the bank doesn't comply within the 40 days, you can send a further letter giving 7 days, and then apply to court. See LBA_(SAR).

What Interest Do I Claim?

There are different methods to claim interest on your refund.

1) Overdraft Interest paid by you on the charges This is the amount of interest the bank charged you for being overdrawn. You can only claim the proportion of interest charged on your charges, as opposed to any charged on spending. The Advanced spreadsheet will help calculate this amount. The Overdraft Interest figures should be included within your Preliminary letters to the bank.

2) Statutory Interest under section 69 of the County Court Act. This is the standard interest applicable to your claim. It is awarded at the discretion of the court and should not be added to your claim until you file the claim with the court. The current rate is 8% PA. You can claim this on TOP of the Overdraft interest (1).

3) Contractual Interest

There are a lot of discussions on the methods and reasoning behind applying contractual interest to a claim. However, this should ONLY be considered if you fully understand the legal arguments, and be warned that you would be increasing the chances of having to justify your claim in court.

Things You Can And Can't Claim For

For those that have looked at their statements and may be wondering what they can claim for and why are the descriptions confusing, or whether overdraft interest is claimable as well...Wonder no more.

You can claim for anything which is deemed a penalty charge,

which includes:-

• returned direct debits

• card misuse fees
• unpaid standing orders
• unpaid item fees
• exceeding your overdraft
• referral fee
• overdraft interest (see below),
• total charges (see below)

See your induvidual bank for a more detailed list (thanks - Michael Brown)

You can NOT claim for: -

• ATM (cash machine) usage fees

• an agreed overdraft fee
• account "service" fees

- i.e. where you pay a fixed monthly amount but receive benefits such as free insurance or travel discounts etc

Overdraft Interest

This is the single most confusing part of most people's claims and one of the most frequently asked questions.

Overdraft interest is applied to your whole overdraft. However, if some of your overdraft is made up from unlawful charges, then a proportion of the interest has been wrongly applied and is therefore reclaimable.

Example

You have a £400 overdraft, you purchase something that day for £200 so now you are -£200 on your current account balance, but on the same day £200 of penalty charges are placed on your account, which means that your current account balance is now -£400 and the bank will charge interest on the whole £400, but as we are contesting that these bank charges are unlawful, then the interest should not be placed on the whole amount, only on the amount that you have actually spent. Therefore, in this example, you can claim back 50% of the interest, however these calculations have to be done daily to truly reflect the amount which can be reclaimed.

Total bank charges

Again this is another issue which many people aren't sure about.

Total charges are reclaimable, they are a separate issue to the other afore-mentioned charges (card misuse, returned d-d's etc), and are not simply all of these charges added together each month. So they are also claimable on top of the other charges.

"Total charges" refers to the penalty charge they put on your account for going over your overdraft limit. This penalty charge is calculated daily, and they can charge up to a maximum of £125 in one month for this, it is then debited from your account on a set date every month.

REMEMBER! On the Advanced Spreadsheet Use the Charges and Interest tab. Do Not use the 8% Interest tab until you file your claim with the court (if you reach this stage).

Spreadsheets

SPREADSHEETS to assist with your claim

If you send the bank a letter before you have given them time to pay up (and are not claiming contractual interest), demanding the statutory interest of 8% APR they will know that you do not know what you are doing and this will more than likely end up with you NOT getting your money back.

YOU SHOULD send a SCHEDULE OF CHARGES with your preliminary and LBA letters. We suggest using the interest calculation spreadsheets, and removing the interest column (if its not for contractual interest) before printing to send.

All charges and dates are ficticious, but here are some spreadsheet templates to help you calculate the interest. Simple versions will calculate the 8% APR only, to be used when filing court claim. Advanced spreadsheets will also help you to calculate the overdraft interest you have been charged by your bank, which you can request at the preliminary stage.

Please choose the spreadsheet relevant to your claim - there are different versions depending on if you are in England or Scotland, which spreadsheet package you use, and also whether you are claiming for a bank account or credit card.

Bank Accounts

England Simple:

Excel

Works

Open Office

England Advanced:

Excel

Works

Scotland Simple:

Excel

Works

Scotland Advanced:

Excel

Works

Credit Cards

England Simple:

Excel

Works

Open Office

England Advanced:

Excel

Works

Scotland Simple:

Excel

Works

Online Simple Spreadsheet

If you don't have Excel, Works or OpenOffice, or you don't like spreadsheets, there is an easy to use Simple 8% spreadsheet here

You can save the file and go back in x days or months and add new or remove incorrect items as need be. The program will then recalculate the charges and interest which can be printed out or saved.

The program will save any number of files, so it is possible to do one file for each account i.e. credit card or bank account

Step 2 - Preliminary Request For Refund.

Send the Preliminary Approach For Repayment letter together with a copy of the completed schedule of charges spreadsheet above.

If you obtained your statements online you will not have asked for details of manual intervention as this is in the DATA PROTECTION ACT LETTER, so it may be useful to add this paragraph to this letter.

Allow 14 calendar days before the next Step.

If they do not reply with a full offer, do not reply at all, or reply saying they are investigating and will contract you in 4 weeks, then STILL move to the NEXT STEP after your 14 calender days.

Step 3 - Letter Before Action

Send the Letter Before Action together with a copy of your schedule of penalty charges spreadsheet again if you have not heard from the bank or they do not agree to refund your penalty charges.

Again allow 14 calendar days before the next step.

Step 4 - Making Your Court Claim

Are You Exempt From Court Fees?

Court fees and do you have to pay them?

If you have difficulty paying the court fees, then you may complete and file an EX160, which can be found here EXEMPTION FORM.

Some people do not have to pay court fees by law, this is an exemption. Others do not pay the whole court fee because the court has decided that if they paid it, they would suffer financial hardship. They are allowed to pay a reduced fee or sometimes no fee at all. This is a remission.

Exemption speaks for itself, if you can prove a particular set of circumstances then your fees are waived. For example, if you are receipt of certain benefits you will automatically be exempt from paying court fees. The courts do not lose out as the notional fees that are waived are added to the cost of a successful action, so that at least defendants do not benefit from their opponents' lack of funds.

A remission is at the discretion of the court staff and it may be partial or total remission. The court staff do have a great deal of discretion and if you can demonstrate that paying the fees will cause you financial hardship then you should file an EX160 and take it to the court with you along with any evidence that you have that you feel may be useful, such as bank statements for example.

At all times the staff must ensure that they meet the statutory obligation contained in S92(3) of the Courts Act 2003 of protecting access to justice.

"(3) When including any provision in an order under this section, the Lord Chancellor must have regard to the principle that access to the courts must not be denied."

In order to qualify for remission you need only demonstrate that if you paid the whole fee you would suffer financial hardship.

Therefore, even if you are not exempt from paying a fee but you think you would suffer financial hardship if you did pay it, you are entitled to apply for a remission.

You cannot use MCOL and also apply for a remission or exemption however, this must be done at a court using an EX160 form.

The exemption and remission applies to all fees, not just the fees for the N1, but also the AQ, N244 etc

Filing Your Claim

It is best to use the bank's registered office address for the court form so look at the Banks section to obtain it.

Complete the CLAIM FORM

Copy and paste the Particulars Of Claim onto your claim form *remove things that don’t apply* (this probably won't fit onto the claim form so cut and paste each paragraph separately and put anything that won't fit on a separate sheet).

Things to remember: -

• At this point you claim the 8% interest, so don’t forget to include this in the Value section.
• If you have any debt with the bank and you do not want them to pay this off with your refund then state that the payment is to be made by cheque.
• You will need 3 copies for the court (1 will be copy returned to you with a court seal).
• Don’t forget to include 2 copies of your schedule of charges with the 8% interest calculations

Or

Register your Claim on line (MCOL). (Use this as a Template)

You cannot include your schedule of charges here, you should post 2 copies of your schedule to the Northampton Bulk Processing Centre the day you issue your claim, so that the schedules can be served with the court papers.

You can only use the online version if your claim is for "money only" ie if you are claiming for default removal then use the N1 form.

Step 5 - Notice Of Issue

Once you have made a claim at court you will be sent a Notice Of Issue

You can find an example here: -

http://www.tradingstandards.gov.uk/wirral/countycourt/n205a.pdf

Step 6 - What Next? The Court Process

Once your claim is issued it will be SERVED on the bank (DEFENDANT) within 4 days.

The Defendant then has 14 days in which to ACKNOWLEDGE your claim.

This is just them returning a form to the court acknowledging receipt and expressing their intent to DEFEND.

Once the Defendant has ACKNOWLEDGED the claim, the time limit extends to 28 DAYS FROM SERVICE of the claim, for them to enter their DEFENCE at the court.

You will be sent a copy of the DEFENCE by the court, and probably a copy from the banks solicitors/legal department.

If you do not receive a DEFENCE within 28 from SERVICE of your claim please make a post on the forum and we will be able to advise you of your options.

Default Judgement?

If you do not receive an Acknowledgement of Service or a defence from the Defendants then you are faced with two options.

Option one is to go for a Judgment in Default and option two is to write to the Defendants and offer them one final opportunity to respond to your claim.

Option One - File for a Judgement in Default

In order to file for Judgment in Default and provided that your claim does not exceed £5000 you must complete an N227 Request for Judgment by default or complete the Request for Judgment section of the N205A Notice of Issue the court sent you when you filed your claim.

Once you have obtained Judgment in Default, in order to enforce the judgment you will then need request a Warrant of Execution by completing and filing an N323 Request for Warrant of Execution. If your claim is for not more than £125 then the fee for this is £35, for any sums over £125 the fee is £55. This fee is automatically added to your claim, however, if your warrant should fail for any reason, you may not recover this fee.

At this point your money will be collected by a Court appointed bailiff, however, the idea that a burly gentleman will barge into your bank branch, clutching official documents and then demand money with menaces and leave with your cash is a fanciful myth.

Court appointed bailiffs only work between 10 and 4, they write to the defendant first, then do nothing for 8 days, then write again, are not allowed to enter premises by force and will almost always leave empty handed having struck a deal with the debtor.

In cases where the defendants do pay, the money is held by HMCS for a further 14 days in case the payment is reversed and then it is paid to the claimant by the court, but many courts only issue cheques once a week therefore you may suffer yet further delays.

If your claim is for over £5000 then you must issue a High Court Warrant or a writ of Fieri Facias, which are the High Court equivalent of a County Court Warrant of Execution. This will be collected by a High Court Enforcement officer of Sheriff’s Officer.

However, if your claim is over £600 you may also have this collected by the High Court Enforcement Officer.

The High Court Enforcement Officer can force entry into commercial properties, including shops (and of course banks) in order to execute the writ and they are paid on results, although High Court procedure is different from county courts and can be complicated and more expensive.

If you decide to issue a warrant in the High Court, you will need a Certificate of Judgment. This has details of your case and says how much you are owed. To request this you need form N293A Combined certificate of judgment and request for writ of fieri facias or writ of possession.

When you get form N293A, you must complete part 1, and send it to the court where the judgment was made. If you do not complete it fully the court may have to return it to you. You must state:

• the date of judgment and the amount the order was made for, including any additional costs allowed by the court since judgment; and
• the total of any interest that has accrued on the judgment, and if appropriate, the daily rate.

As with the County Court however, if your warrant fails for any reason then you will not be able to recover the costs, which in the High Court can run to over £1000.

Option Two - Give the defendant extra time

An alternative course of action is to give the Defendant extra time to either file an Acknowledgement of Service or a defence, or to settle the claim before issuing a Judgment in Default.

Judgment in Default is not a win despite what it may appear and the Defendant has very probably missed your claim, whether through incompetence or ineptitude, the reason will be not important to the court.

In the case of Masters -v- Leaver[1999]EWCA Civ 2016 it was held that a Judgment in Default means just that - it is a judgment obtained due to default. It does not mean that the court has agreed with what was claimed, or favours one or other case.

Therefore, it might be wise to give more time simply because, by writing a letter such as the one here, you wait just seven more days. Despite the fact that you may be able to obtain a Judgement in Default you have not yet won and may well have just bought yourself a two, three, four or more week delay while the banks apply for a set aside or stay of execution, which they are almost certain to do.

In practice, an application to set aside a Judgment in Default is almost always granted as Judges prefer cases to be settled on merit, not by default and on balance, it is seen as better to give the Defendant extra time and avoid a potentially devastating judgment. However, the court can and often does order conditions to be satisfied first.

Furthermore, if the Defendants apply to set aside the Judgment in Default then you will be required to attend a set aside hearing and if you object to the Judgment in Default you may be liable for the costs of that hearing if the set aside is granted.

If you do manage to get a Judgment in Default and apply to enforce the judgment with a Warrant of Execution then the Defendants may apply for a stay of execution.

A stay may be granted without you being present and without your knowledge, the first you will know about it will be when the court contacts you to tell you that you are to attend a hearing in order that the court can decide whether or not they set aside the original judgement.

Of course, by far the best course of action for you is that the bank pay before you have to resort to issuing Judgment in Default or executing any warrants.

Contrary to what you may think, you should welcome a defence as it means your claim is progressing as it should.

However, if you have already obtained a Judgment in Default then, once you have received the N30 Judgment for claimant (in default) you have an opportunity to contact the Defendant once again, with the above letter and enclose a copy of the N30 Judgment for claimant (in default) prior applying for a Warrant of Execution. This may just help them to make a sensible decision about your claim.

Links to Forms

N227 Request for Judgment by default

N323Request for Warrant of Execution

N293A Combined certificate of judgment and request for writ of fieri facias or writ of possession

Step 7 - After The Defence

When you receive the DEFENCE from the court, you will also receive an ALLOCATION QUESTIONNAIRE.

This will need to be completed and returned to the court within 7 Days.

If you claim totals over £1500 you will be asked to pay a fee of £100 to the court.

There is a guide to complete this form here

This Questionnaire enables the court to ALLOCATE a Hearing Date, and issue DIRECTIONS to both parties to proceed with the claim.

Step 8 - A Court Date

Within a few weeks of returning your ALLOCATION QUESTIONNAIRE you will receive a letter from the court detailing a court date and time, a type of hearing, and may include further DIRECTIONS from the District Judge to aid the progress of your claim.

These DIRECTIONS may include submitting your COURT BUNDLE to the Court and the DEFENDANT before the hearing.

Please take notice of this letter and act on it in a timely manner. If you are unsure how to comply with the DIRECTIONS please post on the forums with full details for assistance.

How To Deal With Offers

When (not if) you receive your offer, make sure it is for the Full amount (why accept anything less).

If it is not, then send a Rejection Of Offer letter.

ONCE YOU RECEIVE YOUR MONEY/FULL OFFER, DON’T FORGET TO: -

• PM A MOD (TO MOVE YOU'RE THREAD TO THE WINNERS SECTION)
• WRITE TO THE COURT (LET THEM KNOW YOUR CLAIM HAS BEEN SETTLED.)
• COMPLETE THE SURVEY (AS THIS WILL ENCOURAGE OTHERS TO DO THE SAME).
• AND REMEMBER THAT VOLUNTARY DONATIONS HELP TO KEEP THIS SITE RUNNING, (HELPING OTHERS TO CLAIM BACK THEIR CHARGES).

MANY THANKS FROM THE The Consumer Forums and THE CONSUMER ACTION GROUP.

Need A Boost

Then now is the time to visit the Welcome Forum - where you will find many people ready and willing to get get you started.

LINKY

Page Created By Me01273 03:19, 20 June 2007 (BST)