New template letter to reclaim overdraft fees Dear Sirs,
I address you as the account holder 0030 / 1162 / 59 / 000102xxxx, opened in the branch of Iron Gate Madrid, in order to claim back unfair charges levied following since opening the account and I've outlined below;
1 .-
debit claim expenses, charged on numerous occasions since opening the account, various amounts, being the last of 35 euros. I understand that charges do not correspond to services actually rendered (third rule the
circular 8 / 1990 Bank of Spain ) and discovered that they were settled a claim without the benefit of your organization beyond the debit of the controversial "claim expenses
" .- On the other hand, occurs a double penalty for the same act, since the charging of interest on arrears with an exceptional charge precisely because the account to be discovered, those mentioned plus "claim expenses debit balance." Besides, my account is a personal account and the recovery of the committee (not spending it is not justified by any consideration or activity), is an elevation SAD far beyond the provisions of the Consumer Credit Act 7 / 1995 of March 23, and that outweighs the interest of 2.5 times the legal money.
The concept of "claim expenses debit balance" means that the "expense" claim will be payable for every debtor position and claimed. Regardless of other arguments in this regard, I appreciate that I do get proof of the actions undertaken by the branch in order to claim these debts. Take this opportunity to remind you that if the expenditure can not be justified by his institution would then be considered as "commission" in breach of the
Law 7 / 1995 and increasing the APR of such debit positions well above the limit stipulated in the Consumer Credit Act.
Finally, the committee can and should be registered with the Bank of Spain, but that does not mean that this entity to control a priori applicability. On several occasions the Bank of Spain has ruled against the abuse of commissions previously registered with it.
In any case, I request a review of the
interest charge resulting from all the committees and I claim overdraft interest rate if you were exceeding the maximum interest rate established by Law 7 / 1995 of 2.5 times the interest legal money.
Claims Service Bank of Spain takes this approach in its report claims service .- Year 2007, pags. 84 and 85;
"Service is the discretion of the Bank of Spain claims that the debt of this committee will only be possible if, in addition to appearing contained in the contract, certifies that:
- The accrual is related to the actual existence of efforts made to the customer complaint debtor (which, in the opinion of this service is not justified simply by periodically sending a letter generated by the computer).
- is unique in the representation of the same balance. But considered that their debt is compatible with the impact of expenses incurred by the entity as a result, if any, of third party intervention in the steps of claim (eg, notary).
- By its nature, its size is unique, regardless of the amount of the balance claimed, not admitting, therefore, percentage rates.
addition, as additional criterion, it is considered that the automatic application of that committee is not a good banking practice, and that the claim must take into account the particular circumstances of each unpaid and every customer. Indeed, only when analyzed on a case by case basis the merits of conducting each claim is justified under the principle of good faith, conducting individualized recovery efforts. "There is a unanimous
jurisprudence, and in order to document the request for repayment of overdraft fees they claim, then I quote the
decision of the Audiencia Provincial de Alicante for September 22, 2004 ;
shall be unlawful to collect the commission found
applied in a current account by the People's Bank by not responding to a particular service.
The Alicante Provincial Court considers the appeal brought by an individual claiming the refund of amounts paid People's Bank in respect of a commission applied overdraft on your checking account.
to the court but actually the account holder in the contract negotiated with the bank to pay the fees in question, they do not describe any specific service or management by the bank. It can not therefore be regarded as justified the existence of the services rendered the defendant says the plaintiff and the steps taken to address customer financing are remunerated by default interest and the corresponding maintenance and management fees. FACTUAL BACKGROUND
I.-thru
trial for its passage, was passed sentence for Ilma. Ms. Judge-Court of First Instance no. 3 Alicante, dated March 15, 2004, part of which is as follows: full Dismiss the suit filed by the Solicitor of the Courts Don Esteban López Mingus, on behalf of ... Company against the English Popular Bank, and absolve the defendant of all the motions of the plaintiff, all to express costs against the plaintiff.
Second.-lodged appeals and the Court declared admissible the mandatory transfers made after the expiry of the period amounted cars this Section of the Audiencia, which received and turned over, it is stated day for deliberation which took place on 16 September of the current.
Tercero. "In pursuing this appeal have been complied with legal requirements and formalities, being speaker the Hon. D. Jesús Martínez-Gómez Escribano. LEGAL
I.-The appellant challenges the court ruling, claiming breach of the duty of consistency of judicial decisions, to understand that even though they constitute the basis of the claim that there was no cause or justify the recovery service the commission found, nothing to say about it, reiterating their arguments in the appeal and expressed in claim (despite the protests of the appellee in the notice of opposition) about the lack of cause in the collection of fees, as they are the interests that formula benefit banks in the loan agreements that ultimately are the overdrafts, that the clause in the contract that binds the parties in establishing that the services provided to holders of the bank account receive the amount corresponding to 3) Commission found that applied on the highest debit balance by accounting date that the account has had in the period liquidation is a condition of a membership contract that requires the mandatory judicial control over its cause and possible unfairness, that the reasonable and proportionate would implement the agreed percentage of the average balance of the settlement period, which is applied to the settlement of interest to the client, that is void the Bank reserves the right to modify the terms originally agreed, for infringement of the art.
1256 Civil Code, be contrary to art.
48.2 of the Law on Discipline and Intervention of Credit Institutions and did not establish the agreed communications; considering irrelevant whether or not there prior claim, which in any case had recognized the contrary, finally challenging the effectiveness of the condition tenth general contract, recognized in the statement.
Second.-No Share this court that the court ruling is inconsistent with the claims made in the application, for as stated by the Supreme Court Judgement of 4 November 2003, is settled jurisprudence that the decisions rejecting the application and acquittal of the defendant can not be dismissed as inconsistent, since resolved all issues proposed and discussed (apart from others, SSTS of July 26, 1994 and January 25, 1995 and January 24, 2001), and although this doctrine has some exceptions, such as on the assumption that the taxpayer had made wholly or partially with the claim of the plaintiff, were left to resolve requests promptly deducted by the litigants, the case was altered petendi or the factual basis of the matter, will transform the problem at issue, whether the acquittal was produced by having appreciated an exception is not alleged nor capable of estimating its own motion, or the different arguments used raised by the parties when they cause helplessness, neither of these exclusions attend this course. The truth is that the sentence decide all disputed points under discussion, without prejudice to the plaintiff appellant did not share them.
The sentence appeal is motivation enough, then reading it to understand the considerations taken into account by the Judge to reach the solution contained in part, since it expresses the factual reasons behind it, ie, the logical and legal process leading to the decision or ruling, and properly argued the rejection of requests wrought in demand. In addition, the normal content of the right to effective judicial protection involves obtaining a court for an opinion, favorable or unfavorable, on the merits of the claims made, whose response to the issues raised in this trial has been made in the instance in a reasoned and based on law and not arbitrary or manifestly unreasonable. Tercero.
plays "The appellant's arguments on the claim made in accordance with the fourth and foundation Legal V, 1. º, requesting the defendant's conviction was appealed by the lack of cause in the collection of fees, as they are the interests that formula benefit banks in the loan agreements, which are ultimately overdrafts current account. And it proved that the plaintiff paid the defendant Bank, which had been bound by current account contract September 12, 2000, 7795.54 euros in overdraft fees.
For the payment of the fee for refund to be legally enforceable the following requirements are accurate.
1. º The existence of a pact between the parties to justify the payment of the commission for recovery by of the entity. But that deal can not come to legal life in any way, but by requirements of Law 26/1988 of July 29, on Discipline and Intervention of Credit Institutions, and more specifically of his art. 48.2, developed by order of December 12, 1989, the Ministry of Economy and Finance, also developed by the Bank of Spain Circular 8 / 1770 of 7 September on the transparency of operations and customer protection The pact that said commission be established for return, must determine in an explicit and clear, the concept and the specific amount of it.
Indeed, both litigants agreed that for services rendered to the holders of the bank account would receive commission discovered in the second and tenth conditions of contract on the file as a doc. 2 of the application.
2. º That the commission truly appropriate return for the provision of a service. Now, this idea must be duly qualified. Indeed, the commission contract is the commercial equivalent of the term civil contract art. 247 of the Commercial Code in relation to art. 1709 of the Civil Code. Is, under this latter provision, to provide a service or do anything, the account or instructions of another. In the same vein
discourse expresses itself Bank of Spain, when in his
Circular 8 / 1990 on
transparency of banking operations and customer protection provides: The fees and other expenses should respond to actual services rendered or expenses incurred.
In no case may be charged fees or charges for services not accepted or requested by the client firm . That is, in this area governs the reality p
RINCIPLE paid service as would otherwise have to think that this is an arbitrary and, therefore, devoid of facts. This move on the bank's need to prove what those costs incurred and potentially have an effect, but that with specific description of its concept, size, date, etc.., without reference to these effects worth generic or compact investment of that test, as well
derived from art. 10 bis of Consumers and Users in relation to the numbers 7 and 19 of the First Additional Provision of the law itself-aims Cuarto.
the Bank demanded that the commissions that serve a particular load service provided by the branch to society plaintiff by the efforts to obtain funding to meet temporary cash needs, there are many existing accounting notes (doc. 3 of defense), in short, the reason for the commission's access to stay in position owed to the client so that it can pay on time and without balance.
The truth is that at the current overdraft client reverses the cause and nature of current account banking contract he signed making the relationship of a typical passive operation in an active relationship. But as noted by the Supreme Court Judgement of June 28, 2001,
the role of default interest, also agreed on 29%, is the compensatory damages, due to a breach or retained in meeting its obligation and is determined by the payment of the agreed and, failing that, legal interest. And we must bear in mind however that in addition to default interest is charged on certain quantities account overdraft fee.
not be considered justified the existence of the services rendered to the defendant says the plaintiff, because as said the efforts to meet customer financing are paid from interest on late payments and hold certain accounting entries are perceived by the commission maintenance (1,800 pts. month) and administration (30 pts. per item).
From all this it must be concluded that those commissions but agreed in the contract does not describe any specific service or management by the Bank. Should therefore be revoked in the first instance ruling and upheld the claim for overdraft fees and debit positions required the same to have been without justification, imposed on the defendant's obligation to pay the plaintiff the amount of tax evaded (7795.54 euros) which accrue statutory interest from the date of the notice court of January 28, 2003, as the defendant admits, pursuant to the provisions of art. CC 1100.
The client can demand accountability from the president so that when the president has applied charges or fees and is charged directly by inclusion in the current account can not apply the doctrine of estoppel mention that the error is assumed payment when paid so you never had or was already paid (art. 1901 CC) did not demonstrate that the payment received that it was done by donation or other just cause. And that can not be understood
not to challenge the movements of the extracts in 30 days prescribed by the action to demand payment of amounts unduly paid , only means that they accept as true the fact of payment in the amount it charged but not assume. Moreover, the express agreement (seventh condition) refers to the position of balance and payment of interest rather than commissions.
Quinto.-estimated the appeal by the first of the reasons given, which determines the reversal of the conviction and full estimate of demand, it is improper for futile examination of the other reasons given.
Sexto. "In terms of costs be imposed on the defendant were in the first instance in accordance with due ex art. 394 LEC, no need to impose this appeal pursuant to art. LEC 398.
SEEN the said legal rules and other general provisions to be relevant, BUGS
estimating the appeal filed by ... COMPANY, SL against the ruling of the Court of First Instance no. 3 Alicante, dated March 15, 2004, in the case of ordinary Judgement no. 854/03, must reverse and revoke the order to condemn and condemn BANCO POPULAR SPANISH, SA to pay the plaintiff appellant 7795.54 euros in fees passed on unfair overdraft plus statutory interest of that sum accrued from January 28, 2003 , imposed on the defendant the costs of the trial and no need to impose this appeal to litigants. "
please let me answer them within 2 months stipulated by the regulations of the Bank of Spain, and If you receive no response within this period or is it contrary to my interests, I shall seek an opinion from the Complaints Department of the Bank of Spain.
Regards,
Signed, xXxXxXxXxXxXxXxXxXx
DNI; xxxxx
NOTE; Deliver two copies, and ask us one of them stamped with date of entry. Request to seal all the leaves that are attached to this letter.
our 
