my day in court ***WON***

**qae** · 12th October 2007 12:29

went to court yesterday and the case is not stayed. judge asked me if i was confident i could win my case on the penalty charge issue only. of course i said yes. eek!
so alliance and leicester have been given 28 days to produce documents and i need to become fluent in the penalty charge argument.
HELP!!!!!

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**jansus** · 12th October 2007 16:10

can you give a bit more detail - which court - dates you commenced action - have you prepared full bundle yet?

Approximate amount you are claiming?

Thanks

Jan

**qae** · 12th October 2007 16:59

woolwich court.
claim issued on 6/6.2007
bundle to court/bank in june. ( its as 'full' as i could make it) got relevant case law, t&c from other website and guessed the rest. judge seemed to like it though. i'm unsure of T&c as from 98 and my case is 2001-2006.
i am claimng approx £1400 with 8% calculated in the wrong way and no idea on how to work out costs and court interest icon

etc.
hope this helps, thank you for getting back to me so quickly as my brain is fried after my oscar winning blag yesterday in the court room, please don't let me have to do that again!!!

**qae** · 12th October 2007 17:01

sorry, it wasn't yesterday it was wednesday

**jansus** · 13th October 2007 16:49

So just to be clear was the hearing you went to a case conference or was it a hearing because A&L had requested a stay?

So as far as you are concerned the next hearing is the full hearing about the charges - not a further hearing about the stay.

If you get a written order can you post it please it would be so easy to give you the wrong info.

Ifyou have submitted your full bundle ( not the bundle for stays) then I assume you will not have to send anything else in - but you will have to rely on the bundle you prepared ( you will not be able to suddenly produce more documents) I will post the latest link to the most recent bundle and you can have a look and see how it compares.

Do you have any particular claims such as hardship caused by the charges?

So far as I know - A&L have not turned up to a full hearing - only hearings about stays - so I doubt if you would egt your full day in court regarding the charges - however if the above is correct then of course the next thing is to prepare yourself by fully reading the bundle just in case .

Also you can see the last few posts on my thread in successes ( top of A&L forum) to see how I negotiated with them.

Advanced court bundle

Can't Find What You're Looking For? Here's A Complete A-z Index

GOT A COURT DATE? A guide to the later stages
: Bundle for stay hearings

Jan

**qae** · 13th October 2007 20:54

Firstly, thank you so much for your kindness in helping me.
A few weeks ago i recieved a letter from court saying cases all stayed because of testcase. I wrote to the court manager and said my case was also based on the benefits acts, outlined my financial hardship and asked judge to reconsider.
The court then allowed the case to proceed and date of 10th october given
I then got a letter from bank solicitor saying that they were going to ask for a stay on 10th october.
i phoned the court and was told that the hearing would be about the stay and the case.
I used a letter called a 'deny stay letter' from another site but edited to suit my situation and evidence and highlighted my severe personal financial situation again.
I prepared a speech concerning my financial hardship and brought supporting evidence into court. i also brought a file contain the court bundle.
in the court the judge asked the banks solicitor if he had read my 'deny stay letter' and gave him time to read it. he had hardly any of the papers i had sent through as a court bundle back in june. he failed to impress the judge with any of his arguments and had no paper work to back up any of his defences.
The judge asked me if I thought i could win my case based solely on the penalty charge issue and i pretended to be very confident and my paper work from the website made me appear knowledgeable.
i mentioned my hardship speech but the judge made it clear that i didnt need it as she had no intention of staying the case.
she asked me again if i could win the penalty charge argument. i lied that i was definate and she then gave the banks solicitor 28 days to produce documents about 'costs' i think and said that the court would issue an order and that was that. i certainly wasn't prepared for this outcome and just played it by ear. SCAREY STUFF!!!

My court bundle is not as detailed as the one you showed me but the judge seemed to think it was ok although she hadn't read all of it. However there is no witness statement and i want to submit a new schedule of charges as the one i gave in had the interest icon

calculated at 8% of the total not per annum. ( you know, the amount divided by 100 and then multiplied by 8) how embarrassing. The solicitor didn't have the information at all so shall i send them the proper version that i made using the 'money savings expert calculator' or just hang on to the figures and negotiate when they make an offer.
i've only got a T&c from june 2007 and 1998 off a website.
not got as much case law either, but quite a bit.

What do you think. are they going to risk a court case?? do i need to improve court bundle? What's my next move janus??

**jansus** · 13th October 2007 21:05

Your sis actually I think a very important case - hardly any judge has refused the stay on any basis.

I ma sneding you a private message

then I will be back

Jan

**Michael Browne** · 13th October 2007 21:08

Firstly, very well done!!!

As regards witness statement and more detailed bundle, I wouldn't bother, at least for the mopment, since A&L will certainly not reveal their costs and are much more likely to settle.

Re the 8%: Re-calculate the figures ( not with MSE calculator). see here:
iCalculate

Again don't resubmit these since you would need to amend your claim icon

at a cost of £35. But you will then have the correct figures to negociate with them went they try to sttle.

**jansus** · 13th October 2007 21:14

Hi again

Yes Michael is right - they will probably either try to appeal against the stay being lifted again or try and settle -

I would try and leave any negotiations to the last minute so they are on the back foot - and if they ring and make an offer then - say you will think about it before being rushed into any decisions.

Be aware though they have on several occasions done this on the court doorstep.

Also you have the double whammy that they should not have pushed your case this far if you are a "hardship case "

See my previous thread on here a few days ago.

Keep posting and let us know your progress

jan

**zootscoot** · 13th October 2007 23:41

went to court yesterday and the case is not stayed. judge asked me if i was confident i could win my case on the penalty charge issue only. of course i said yes. eek!
so alliance and leicester have been given 28 days to produce documents and i need to become fluent in the penalty charge argument.
HELP!!!!!

Very interesting!

Can you tell me which documents the defendant has been ordered to produce?

Also has a date been set for a hearing?

**qae** · 14th October 2007 11:32

they have been asked to produce evidence of their 'costs'. can't be more clear than that i'm afraid. the court will be sending an order, if this has the date on i will let you know. been reading through the court bundles and feeling far more confident about the case and basic issues/arguments. i'm enjoying this now!

**qae** · 26th October 2007 17:27

I have received the 'General Form of Judgement or Order' today and this is what it says

Before District Judge Backhouse sitting in Woolwich county court icon

, 165/167 Powis Street, London, SE18 8JW
Upon hearing the Solicitor for the Claiment and the Defendent in person
IT IS ORDERED THAT

1. The claim be adjourned to 11th February 2008 at 2.00pm before District Judge Backhouse. Time estimate 2 hours.
The hearing will be in relation solely to whether the charges amount to a penalty.

2. Defendant has permission to file and serve any further evidence as to the amount of the charges by 4pm 7 November 2007

Dated 10 October 2007

So where do I go from here then? Any ideas? All help gratefully received!!

**jansus** · 28th October 2007 13:38

I still think this is unusual - and that you really need more expert help than I can give - this is after the OFT case is supposed to start and in theory could still be in progress.

I dont quite understand why your judge has been willing to proceed with your case on this basis when in nearly every other case they have been stayed- even in hardship cases.

There has been a case in Torquay last week against Nat West - where the case had the stay lifted by the judge and the case was to go ahead - when it did - despite the bank only having filed a skeleton argument at the last minute the stay was put back on - and "apparently" the judge then indicated to the claimant claimant they would not have won the case any way ? So they were doing them a favour.

I would think you really need some help from someone like "Zootscoot"

Your main decisions seem to be - if you do go to court do you feel your bundle is adequate? And will you be prepared enough from the info on here to make your legal argument if necessary.

If not you could amend your evidence but as Michael explained that will cost £35.00.

The other thing is just to wait and if it really does seem that A&L will appear in court and it is a full argument about the penalty charges. If this happens the case is still going on- then I think you may get more help from the site if they think your case will be significant.

At the moment if you decide your case as presented is sufficient, it is just a case of waiting for the A&L to make the next move. In between it may be worth trying to get a contact there and see if you can gauage what they think they will do ( I would try A&L rather than Wragges as they do not seem that helpful) . It may be worth reading "annoyed form caerphilly" thread on A&L forum as he managed to get a sympathetic ear after working his way through about 10 departments!

But remember appear confident and willing to take the case to the end at all times if and when you speak to them.

Jan

**zootscoot** · 28th October 2007 23:37

Hi qae,

What evidence has A & L already submitted. Have they filed their bundle yet?

The main concern with relying solely on the penalty argument is that you do have to establish a clear breach of contract. Soit is importatnt to have a full set of T & Cs. I have some 2001 T & Cs I can send to you if you pm your e-mail address. I might be able toget hold of some others.

Can you tell me exactly what type of charges you are claiming eg unauthorised borrowing, paid referral or unpaid item etc and I'll check out the T & Cs to see if they can be related to a breach.

All the best

Zoot

**jansus** · 13th November 2007 18:26

Hi

the court order says the A&L can file further evidence if they want to - but any defendant can rely on the original defence in the court hearing if they want to
They do not have to submit a "bundle" if they do then you should have a copy.

If they do not submit more papers they can not produce more documents on the day so the only arguments you will have to answer are those on the defence ( probably about 6 pages - 23 points? from memory)

You could call the court to make sure whether they have submitted more papers if you want to put your mind at rest.

Then it looks like it is a waiting game.

The other angle is trying a letter to the fos icon

making it clear that you are a hardship case and you feel the A&L are abusing both the terms of agreement and the Banking Code icon

by putting you through this?

opinions ZOOTSCOOT?

I am willing to help you with a letter if you want.?

Jan

**qae** · 13th November 2007 21:08

a letter to fos icon

sounds like a plan, I will draft a copy and then pm it to you for your opinion (if that's ok.)

i will read through the defense again and call the court about any extra papers.

it feels better to be doing something!

**jansus** · 13th November 2007 23:05

also I can arrange for the letter to be sent to the FSA for you and the board that oversees the Banking Code icon

.

put the draft letter up -without your personal details

jan

see next post banking code

**jansus** · 13th November 2007 23:08

14.1 We will consider cases of financial difficulty sympathetically and positively. Our first step will be to try to contact you to discuss the matter.
This spells out existing good practice. Subscribers will consider customers to be in financial difficulty when income is insufficient to cover reasonable living expenses and meet financial commitments as they become due. This may result
from a change in lifestyle – often accompanied by a fall in disposable income and/or increased expenditure – such as:

• loss of employment
• disability
• serious illness
• imprisonment
• relationship Breakdown icon

• death of a partner
• starting a lower paid job
• parental/carer leave
• starting full-time education

A customer’s financial difficulties may become evident to the subscriber from one or more of the following events:

• items repeatedly being returned unpaid due to lack of available funds;
• failing to make loan repayments or other commitments;
• discontinuation of regular credits;
• notification of some form of insolvency or court proceedings;
• regular requests for increased borrowing or repeated rescheduling of debts;
• making frequent cash withdrawals on a credit card at a non-promotional rate of interest; and
• repeatedly exceeding a credit card or overdraft icon

limit without agreement.
Subscribers should make available to customers straightforward information in plain language on their procedures and systems for dealing with customers in financial difficulty. This might explain, for example, the main rights and
responsibilities of customers and subscribers, and what is involved in legal demands or a referral to a debt recovery unit.
The BBA publishes a leaflet, ‘Dealing with Debt’, which is suitable for this purpose.

Thereafter, the subscriber should acknowledge that income may only be available to repay ‘non-priority’ debts once provision has been made for any ‘priority’ debts. The subscriber should leave the customer with sufficient money
for reasonable day-to-day expenses, taking into account individual circumstances. Subscribers will not subject customers to harassment or undue pressure when discussing their problems.

A debt is considered ‘priority’ where the customer’s failure to pay could lead directly to the loss of one or more of the following:
• the customer’s home (eg, rent, mortgage icon

, secured loans);
• their liberty (eg, council tax, child support maintenance, income tax, court fines);
• their utility supplies (eg, water, gas, electricity); or
• their essential goods or services (eg, a cooker, a fridge, or the means to travel to work).

Subscribers may consider agreeing with such customers appropriate concessions relating to charges and interest payable by the customer. This may mean suspending, or reducing interest, default charges and annual fees where agreed repayments do not cover them. The nature of any concessions will need to be assessed on a case-by-case basis, taking account of the seriousness of the customer’s situation. (Charges will have been communicated to the customer under section 5 of the Banking Code icon

.)

**jansus** · 15th November 2007 22:03

Have a read of simons thread on Abbey icon

- he is trying fos icon

at the moment

jan

**qae** · 17th November 2007 19:49

I am informed by a FAQ sheet from Alliance and Leicester that they would be conducting a filtering process to ensure that cases of financial hardship are still dealt with during the waiver icon

period. The fos icon

has stated that cases of financial hardship must be allowed to proceed. I can only think that my case has been over looked accidentally by the bank as they are well aware that my sole income is social security benefit as i wrote to them on the 28th of june and the 9th of july and informed them that they had taken charges from my benefits, including disability living allowance that is paid into my account but is the entitlement of my 9 year old disabled daughter.
I reminded alliance and Leicester, in these letters, that section 187 of the social security act and section 45 of the tax credits act states that these benefits are inalienable, that is, every assignment or charge on these benefits and every agreement to assign or charge such benefit shall be void.
Patricia Hewitt stated to the Bankers Assoc on 26/10/2006 that ' adirect payment is not money that belongs to an individual, it is public money to be spent on the persons care and needs. Taking this money will mean their care and needs are not met'.
The care and needs of my disabled child are not met when monies are taken from the weekly budget to pay bank charges. I have broken down my finances on the weekly expenditure form enclosed which show that my disposable income after all house hold expenses are taken into account is less than ten pounds a week. when we are hit with bank charges the payments must come from monies that are set aside icon

for food and fuel, causing us great hardship. It is very difficult for me to respond to financial emergencies due to my limited income and my debt repayments are all for esential items as shown. There are no extravagant or luxury purchases in our household. I waste no money on alcohol and tobacco. Due to the caring responsibilities to my disabled child it is unlikely that i will be able to go back to work in the foreseeable future and so i am locked into benefit poverty and debt. My financial hardship is clear.
I have asked that monies claimed from bank charges be offset against the £400 over draft i have with Alliance and Leicester. This overdraft icon

was given to me in March 2006 when i was in financial difficulties and very vulnerable. My sole income was social security benefit. I consider it to be grossly irresponsible of alliance and Leicester to encourage me to go into this amount of debt with them and have little hope of paying the money back. It would be an enormous relief to be able to pay this money back, close my account and have no further dealings with them.
I would respectfully request that the FOS moves to protect this vulnerable family from further financial uncertainty and instruct alliance and leicester to deal with my case immediately.

Can i have some guidance on this letter please, editing and additions etc. Thanks guys, QAE

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