Gandolfi v NatWest

[hedgey06]

I don't think you can request the T&Cs under pre-action protocol until you've actually filed at court - but somebody will correct me if I'm wrong!

I'd also be inclined to stress the fact that this is a business account and is not affected by the OFT announcement - although I imagine they'll ignore you regardless!

[gandolfi]

Originally Posted by hedgey06

I don't think you can request the T&Cs under pre-action protocol until you've actually filed at court - but somebody will correct me if I'm wrong!

Thanks Hedgey

The T&C request was part of the LBA template (consumer version)
3. Letter before action - Consumer version - asking for it back
I've included it on my Personal Account letters and thought it would be OK to include in the business one too.....what do you think?? Should I remove it?

Gandolfi

[hedgey06]

Sorry mate - my mistake! If I bothered to read updated templates I'd be alright!!

[gandolfi]

Originally Posted by hedgey06

Sorry mate - my mistake! If I bothered to read updated templates I'd be alright!!

He-hee
Thanks Hedgey - they've been updated with new info again since I wrote my draft....impossible to keep up with every tiny detail.

If all is OK I'll post this off today.

Gandolfi

[gandolfi]

Hoping someone can help with this....

I haven't had any luck getting advice from Laiste as she is extremely busy, so I'm hoping that GaryH or Hedgey (or anyone else) may be able to pass this on to someone who can help.

Summary of the story so far:
In March I was taken to court for non-payment of my overdraft/loan accounts. I wanted to defend and Counterclaim but was waiting for information from the bank so that I could particularise my counterclaim for unlawful charges, which are greater than their claim. The case was delayed because the bank wasn't supplying the info. Eventually, in July, their case against me was struck out because they didn't comply with an order to submit their AQ. All very good!

However, at the beginning of August the bank wrote to me saying they intended to apply for reinstatement of the case. So far, the court hasn't received anything from them.....


My questions are:

1) How much time do they have to ask for a reinstatement and is a judge likely to allow it?

2) If they don't reinstate their claim against me, what is the status of the debt (which as far as I know is still accruing interest) in light of the strike out?

3) Finally, part of my counterclaim would have been to have Defaults removed from my credit file. Is there anything I can do to get them to remove the Defaults as a result of the strike out? i.e. can I write saying something like 'in light of the fact that your case against me was struck out, I demand that the Defaults on my credit file in respect of the accounts that were in dispute are removed immediately'

I am continuing now with my own claims against them (LBA sent yesterday) for unlawful charges that also include the default removal, but wanted to know if I could also pursue them for removal of the defaults from this angle.....

Many thanks!
Gandolfi

[GaryH]

Originally Posted by gandolfi

1) How much time do they have to ask for a reinstatement and is a judge likely to allow it?

I don't think you should worry about it. I can't see them applying to restore the claim, if they were going to do that why not just file the AQ in the first place. Its not a hard thing to do, in fact its quite simple - a couple of ticks in boxes, thats all. They had an unless order as well so its hardly like they 'forgot', is it? IMHO that was the easiest way out for them - I've seen it happen before in cases where the debts been challenged and the lender has struggled to come up with the paperwork.

Whether they are able to counterclaim against you after you file your claim is something I'm not entirely sure on - I'm trying to get a definitive answer on it but I have a strong gut feeling that the answer is no.

2) If they don't reinstate their claim against me, what is the status of the debt (which as far as I know is still accruing interest) in light of the strike out?

I don't know. I'm not going to answer becouse I'd only be speculating - I'll try to find out.

3) Finally, part of my counterclaim would have been to have Defaults removed from my credit file. Is there anything I can do to get them to remove the Defaults as a result of the strike out? i.e. can I write saying something like 'in light of the fact that your case against me was struck out, I demand that the Defaults on my credit file in respect of the accounts that were in dispute are removed immediately'

Alot of that would hinge on 2), but nonetheless you can seek to remove them by the usual route as part of your claim as long as the default was caused by the charges.

[gandolfi]

Originally Posted by GaryH

I don't think you should worry about it. I can't see them applying to restore the claim, if they were going to do that why not just file the AQ in the first place. Its not a hard thing to do, in fact its quite simple - a couple of ticks in boxes, thats all. They had an unless order as well so its hardly like they 'forgot', is it? IMHO that was the easiest way out for them - I've seen it happen before in cases where the debts been challenged and the lender has struggled to come up with the paperwork.

Whether they are able to counterclaim against you after you file your claim is something I'm not entirely sure on - I'm trying to get a definitive answer on it but I have a strong gut feeling that the answer is no.

I don't know. I'm not going to answer becouse I'd only be speculating - I'll try to find out.

Thanks GaryH - it's great to have your calm and objective view on things!

If you are able to find out, it would be really useful to know what the status of the struck-out debt is and whether or not they can counterclaim against me for it if/when my claim for charges goes to court.

I get the feeling that their threat to reinstate the claim was just meant to discourage me from taking my own action...

Thanks and best wishes,
Gandolfi

[gandolfi]

Just when you thought it was safe to go back into the water......

I received a letter from 'Green & Co' soloicitors today saying that they're taking over NatWest's case against me.

They also enclosed a copy of their application for an order to reinstate the case following the strike-out in July. They include a set of copied fax's to and from the court, suggesting that the court failed to provide a copy of my defence to them, thus preventing them from submitting their AQ on time (which resulted in the strike out).

On the form they request:
1. The claim be reinstated
2. The Claimants claim be stayed to the amount of £Total and the stay be lifted on application of the Claimant together with Case Summary

They are requesting the stay because in my defence I allege that there would be no debt if it were not for the bank's unlawful charges.

(There is a long statement re: FSA/test case etc that I can post if you need it?)

Grrrr....what do I do now?

So far, I've not been able (because of their delays in providing information and because of the strike-out) to submit the fully particularised details of my defence and counterclaim against them. It is so frustrating.

Regarding the request for a stay: their claim against me is for debts on a BUSINESS overdraft and loan. Originally, my counterclaim was going to include both business and personal claims for charges - a total amount that is way above what they are claiming.
However, if I'm going to challenge the stay, I could just use the business account claim (the largest proportion) in my defence, so as to question the relevance of the test case...? Then fight the personal claim separately? I'd prefer to get the whole thing done and dusted in one go if I can.

Also, the last I heard from NatWest themselves they said that the original agreements (for the loan and accounts etc) cannot be found and appear to be lost 'at the present time'....I'm suspicious of this aswell. Quite a lot of the information requested in the CPR 18 request, has not been supplied. Do I need to write again for clarification on this from the solicitors? Could they be holding them back?

Also, should I write to the Court to challenge the re-instatement? Or should I welcome the re-instatement and the chance to Counterclaim, but challenge the stay?

Sorry, so many questions......

[hedgey06]

Sounds a bit complex Gandolfi - I'll flag this up for you.

[gandolfi]

Originally Posted by hedgey06

Sounds a bit complex Gandolfi - I'll flag this up for you.

Thanks Hedgey x

[GaryH]

Originally Posted by GaryH

....I can't see them applying to restore the claim....

Famous last words!

Remind me, is any of this debt through a loan, or just overdraft? If loan, have you sent a CCA request?

[gandolfi]

Originally Posted by GaryH

Famous last words!

Remind me, is any of this debt through a loan, or just overdraft? If loan, have you sent a CCA request?

Hi GaryH ....never mind, it's impossible to predict everything.

The debt is for a business overdraft and business loan (the amounts are nearly £15k). I haven't sent a specific CCA request, but I sent them the CPR 18 request for information in June. This included requests for:

1) true copies of original signed agreements referred to in their POC
2) documents relating to insurance
3) true copy of default notice(s) as referred to in their POC
4) Full terms and conditions and charges tarriffs and amendments
5) full and comprehensive statement history
6) specific details of specific fees/charges and detailed breakdown of said fees/charges and what each charge relates to
7) details of any manual intervention

They sent a letter with bank statements going back to 1992 (not to the opening of my accounts). In the letter they said that the bank cannot locate the original signed agreements for the accounts claimed, that they are unable to retrieve them from their off-site storage and now believe they are 'currently lost'. They say there is no record of any insurance (even though payments are clearly shown on my statements). Regarding manual intervention, (by which they assume I mean for authorised transactions such as agreeng/declining a direct debit) they confirm that it was all automated.

Finally, I had a letter from Stuart Higley this morning (following my prelim/LBA?) which says that claims beyond 6 years are time barred by the Limitations act, but they will consider within 6 years. In the letter he also asks me to deliver my statements to him! Not sure if he is aware of the NatWest claim against me that they are trying to reinstate, or whether this is just standard....

What do you think is the best plan of action from here? I imagine I need to do the following things:

1) Write to the Court in response to their application to reinstate the case and to challenge their request for a stay on the basis that this is a Business account and that the test case isn't relevant. Possibly include an account of their previous unwillingness to co-operate within timescales, provide requested information etc?

2) Write to Stuart Higley to say that I plan to go ahead with my claim as per the details and scheduled dates in my LBA, challenging their citing of the Limitations Act.

3) Prepare a strong defence and counterclaim (and my own POC) in readiness for whatever happens next.

As Hedgey says, it's complex stuff and I'm feeling a bit out of my depth, so any help with this would be very much appreciated.

Typically, their letters arrive just before a bank holiday weekend when all we want to do is go and enjoy the last break of the summer!! So, apologies for the bad timing. Please let me know if you need any more information. Meanwhile, hope you and everyone have a very good weekend!

Thanks and best wishes,
Gandolfi

[GaryH]

No worries - I'll come back to this tomorrow. In the meantime, send a CCA request off for the loan ASAP by recorded delivery. I think theres one on the site somewhere, I'm sure Hedgey or someone else can point you in the right direction.

[hedgey06]

Hi Gandolfi, letter template for CCA request is here: http://www.consumeractiongroup.co.uk...tml#post162367 x

[gandolfi]

Originally Posted by GaryH

No worries - I'll come back to this tomorrow. In the meantime, send a CCA request off for the loan ASAP by recorded delivery. I think theres one on the site somewhere, I'm sure Hedgey or someone else can point you in the right direction.

Thanks GaryH and Hedgey!

CCA request letter ready to go.

Which address should I send it to?
The solicitors (who have asked for all future communications to be sent to them)?
Or the Borehamwood address?
Or the Bishopsgate address?

Cheers,
Gandolfi