NeilP .v. Abbey National Plc *** WON AS WELL!!!**

[NeilP]

I've had other threads that were general questions, but as things are getting serious, i though it prudent to tell you guys what's been going on, and to get your words of wisdom!

History:-

Prelim Letter sent 5th March 2006, Fob Off letter received 14th March 2006
LBA sent 14th March, Fob Off reply received 21st March 2006
Small Claims Action initiated 31st March 2006. No Defence or Acknowledgement Filed.
Judgement by Default granted on 21st April 2006.
Warrant of Execution granted on 25th April 2006.
E-mail received from Abbey Solicitors on 4th May asking (!) if i would agree to a stay of execution. Reply sent by return as a polite 'No'.
E-mail received from Abbey Solicitors on 5th May confirming Stay of Execution had been obtained.

Application Notice and Witness Statement received from London County Court today (19th May) with date of hearing set for 31st May at 3pm.

The Application Notice basically confirms all the reason why a Stay of Execution should be granted under CPR 13.3, with the possible exception of Part 2 (which deals with promptness of response - see later)

The Witness Statement is 11 pages long, so i won't copy it all down here (although i can scan it and e-mail it if required).

Various points i have pulled out (some relevant, some just picky) are as follows:-

4. Account Holder at the Staines Branch. Nope, i thought all accounts were held locally in London!

7. 'The Claimant has not particularised the charges in respect of which he seeks a refund and which he considers to be penal and/or unfair. The claimant had failed to provide details of the sums claimed, the types of charges incurred and dates when the charges were debited to his account.'

8.3 'The defendant's charges are in line with the banking industry as a whole. The defendant should be given the opportunity to adduce evidence at trial on this point.


They then go onto their T&C's and how i knew that these charges would be levied.
They then go into the Banking Code of Conduct and refer to the most recent one that came into effect on 31/03/05, and that is does not stipulate the level of charges which banks can charge in respect of unpaid DD's or unauthorised OD's

22. 'Further, the charges reflect the defendant's estimate in advance of the loss and administrative costs which it would be likely to suffer by virtue of being unable to par DD/Visa Debit/Cheques due to the insufficient funds in an account, or for the account going overdrawn.

24. 'It is for the claimant to prove, that as a matter of law, that they charges represent a penalty and are irrecoverable at common law.

30. Here they are talking about where a term of contract is deemed to be unfair. They quote case of 'Director General of Fair Trading v First National Bank Plc (2001) UKHL 52, (2002) 1 AC. This case apparantly concluded that a default provision in a loan agreement made between a lending bank and a consumer borrower was not unfair.

31.3 'in any event, as referred to above.......that the charges which the defendent has levies both reflect and are proportionate to the administrative costs incurred by the defendant in an account.'

32. 'The defendant did not file an acknowledgement of service or defence because, unfortunately, the defendant's Legal Department did not receive notice of the claim until 02/05/2006 after Judgement had been entered. I became aware this Judgement had been entered, when i spoke to the court on 03/05/06.

33. 'I am informed by Linda Brewer of the defendant's Legal Department that enquiries have confirmed that they claim form was sent to the defendants registered Head Office. I am unable to offer an explanation as to why the claim form was not immediately sent to the defendant's Legal Department, as is standard procedure. Instead the claim form appears to have been sent to the case team in Bradford and was received by them on 26/04/06. The claim form was then sent to the Legal Department and received by them on 02/05/06.'

34. This one confirms their standard procedure for legal action to be immediately faxed through the their Legal Team, AND published on the defendant's intranet system. They admit that this procedure had 'broken down' and that 'the claimant (I'm sure they mean defendant) accepts that it is at fault in relation to failing to acknowledge service within time and accepts that the judgement is regular.'

36. But here they say that as they acted within two days of their legal team receiveing the paperwork on 2nd May, that that's OK!

My question now is :-

Do i need to respond to the court about their defence, or just wait until the hearing?

Thanks

Neil.

[NeilP]

Also.....

Does anyone fancy coming to court on 31st May at 3pm (Central London County Court)?

[mahala]

can't help with this except to say that Abbey has used the excuse that they did not receive the court paperwork in other cases when trying to get default judgements set aside.

A search on here should bring up the relevant details (try "stay of execution"). It might be worth showing the judge that this is their standard patter, and not an unfortunate lapse of procedure.

[NeilP]

Any takers? Coffee / Beer is on me! I might even throw in a Jammy Dodger or if i win, might even upgrade to a Donought!

[Rich44]

I would if I wasnt at work and too far away but good luck with it m8

[NeilP]

Thanks Rich44,

I am speaking to Whizzkid tonight hopefully who is in the same boat as me, but who's court hearing is a couple of days later on 2nd June.

Watch this space as they say!

[Jane Austen]

Wouldn't it be a good idea foe you to PM the administrators or mods and find out about all the cases where they have used the same excuse to get the case set aside? This is getting a bit scary now if they are going to use the same ruse with everybody.

Good luck anyway. I'll be there in spirit but I'm in th NE.

[NeilP]

Righteo,

6 days and counting.

The more i look into things, sometimes the scarier it becomes!! For instance, i found out the other day that if the Judge agrees to the stay of execution, he can immediately move onto hearing the case in full!! Not sure who would be more worried, me or the bank for actually having to present their case in front of a judge!

It's made quite interesting talk at work, it's amazing how many people have heard about claiming back their charges, but not actually believing it! It's not until i start telling them about it (and everyone else groans, as they have all heard 20 times before) that they start to believe it, and understand how simple it is.

So far, my office floor has almost disappeared under reams of papers that i have photocopied threefold (one for me, one for the judge and one for the Abbey's solicitor). Good old Viking - they're going to make a mint out of me before i'm finished!!

[comanche]

Subject to my work diary (I'll check tomorrow), I'll be there.

[NeilP]

Seminole,

That would be fantastic! I will PM when i get back from work later on today.

Neil.

[NeilP]

Only 4 days to go ....

But only 2 working days, Tuesday and then the Court Hearing on Wednesday. So, if Abbey are going to make me an offer i can't refuse, then they had better get their skates on!!

(Take note, anyone from Abbey or their Solicitors reading this, i will accept offers in excess of £15k to settle all of my claims accross, my bank accounts, mortgage and wifes old bank account!!)

The files are coming along nicely, just dotting the i's and crossing the t's and also trying to find some interesting case law to through in for good measure!

(Take note, anyone from Abbey or their Solicitors reading this, Cash would be superb! Unmarked notes of course....)

I suppose i should also start to think about what to wear ........

Suit & Tie = i know what i'm doing, so don't muck me about
Smart Casual = I've made the effort, but please don't take the michael
Casual = i really can't be bothered to make an effort, as Abbey haven't done anything to deserve it.
Scruffy = Judge, Sir, i need the cash, please make them give it to me!!!!!

What do you guys think?

[whizzkid001]

Naked = unlawful charges - you too could end up like me!!

[mark]

Neil,

It may help you if you read OFT's report on credit card charges.

Essentially, the banks' charges are against the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR); and there is no apparent loss to the banks when customers breach their borrowing limits. All that happens is that interest continues to be charged, and is either eventually repaid, or the bank sues the customer for not repaying the borrowings.

It is open to the lender to simply not honour any cheques, SOs, DDs, etc., if they would take the customer over their given credit limit. The lender doesn't have to send letters, etc., to inform you that you have breached the limit - they have set up that particular system purely in order to try and justify their punitive charges. If they have suffered any losses, it is entirely of their own design! Of course, being a wunch of greedy, amoral and thoroughly unpleasant bankers, they have already covered themselves by pricing their activities so as to make exorbitant profits across a range of their products and "services". In other words, they already overcharge their customers, and then adding separate punitive charges means that they profit twice from some of their more unfortunate customers.

Dealing with their customers' accounts is part and parcel of their everyday activities as a bank, and that includes sorting out any issues with customers breaching their borrowing limits. If a customer refuses to repay what they owe, then the banks, like everyone else, need to take legal action to recover what the court decides is rightfully theirs - not just decide that customers should pay whatever figure enters the bankers' devious little brain.

They haven't got a leg to stand on - and if they do turn up in court, and the judge gets it wrong, the OFT and/or other interested parties WILL ensure that penalty charges are consigned to the bin!

Good luck,

Em

[NeilP]

Mark,

Nicely put. My hearing is for their application to set aside the Judgement that i have already won against them (by default). I am certain that they will turn up to this hearing as they do not want to have a CCJ against them re: return of bank charges. Then, presumably, as with everybody elses claims that have gone to the County Court, they will settle prior to the hearing.

It's just a game to them, and at the moment it is 30 - 15 to me!!


Whizzkid001 - Naked eh..... now there's a thought. Not a pretty one that's for sure!! LMAO!

[joneshousehold]

Good luck with this. Sorry I can't make it (should be studying!)

There were some postings about comments made by some prominent bankers to a Commons Select Committee. They said the charges are based on total costs of banking across all customers and then divided between those who breach the contract. This however is not then a cost of your breach and is part of the reason why it is unfair.

If you go along to the Court without a legal team as the Abbey will have, the judge will be helpful so you may want to think about saying you are not able to deal with a full hearing (unless of course you can and want to) if they win their stay of execution.

Also you might want to find out how many times this kind of set aside has been requested before by Abbey because I have seen this a few times now on the forum. If you have Whizzkid helping then I suspect this is one area already under consideration because I think he was trying this argument himself.

On a more personal note I think it's a bit rich that they say their staff failed to act properly which resulted in the missed deadline so they want to have another try. If they have made a mistake then it should be tough luck - that's what they have said to us about our bank charges in the past. They didn't sympathise with us so why should we sympathise with them. In the immortal words of Pike "they don't like it up 'em". Still that's no use to you in Court. It's just my personal view - the cheeky beggars!

Sorry if this just repeats what you already know. I would like to see Abbey suffer so 'go for it'.

[NeilP]

2 days to go...... and not a skid mark in sight....... yet!

Tomorrow is Abbeys penultimate chance to send me something in post that resembles something cheque-like.

Just a thought, if i win this stay of execution, will the judge let me whip out my camera and take a picture of the Abbey Solicitor's face?

[joneshousehold]

Probably not but fun to think about anyway!