NATIONWIDE IN COURT

[disneyman]

Hi all, up until sunday when we read the article in the Sunday

Express we thought we were on the slippery slope to oblivion. Now there

appears to be a light at the end of the tunnel (all be it a dim

one).

 

Since Jun last year our finances have been under the control of a

debt management company. While banks and financial institutions are not entirely to blame they have most certainly have been a contributy

factor to our financial state.

 

On Tues 21 Feb 06 we will be attending county court to hear our

case which the Nationwide have brought against us for being unable to

repay a £1950 authorised overdraft. This has now amounted to close to

£3000 due to interest, charges & legal fees being lodged against us

despite our appeals by both ourselves and the DMC to cease any further

charges and interest being incured.

 

Since reading the article in the Sunday Express I have dug out 4

years worth of bank statements out of 6 years which we were with

Nationwide to calculate how much in bank charges we have paid for one reason or another, during this period it amounts to £1941. Given that this

is just one of many financial institutions which we have been dealing

with it is little wonder that we are in the mess which we are in.

 

Can someone shine a little legal light on this situation. Given

the short amount of time which is available to lodge our case against

these bank charges, should we bring this up at the hearing? or wait

until after the hearing to begin the case to reclaim the charges

incured? or is it to late to do anything and just accept the

consequences.

 

Given that we were unaware that reclaiming bank fees was possible

we did not contest these amounts on the documentation which the courts

posted to us.

 

Over the years we have been dealing with many financial

institutions many of whom have lodged fees against us could someone please forward an example letter which should be forwarded to the financial institutions from the outset (i.e. the shot accross the bows letter

prior to any legal action).

 

We hope that someone can assist us and give some good advice over

this matter, it would be greatly appreciated and may benifit us

tremendously in court.

[gothicf0rm]

if the charges alone are 1941 and theyve charged interest on those charges too (you can get interest back that is directly charged on the charges) the debt you have with them doesnt legally exist! infact they owe you money. bring it up at the hearing and save yourself the grief of chasing the money, if you do it properly the judge will throw the bank's action out of court and your debt will be totally removed.

[BankFodder]

You have mail on your BCH account.

 

However, this post is more detailed than the note which you wrote to me.

 

Having just a quick read of your post, I agree that the debt seems substantially been comprised of bank charges. I had thought from your posts on BCH that there was a lot more money at stake and that your position was more dangerous.

 

However, I do think that you should ask for an adjournment from the nationwide. Do it today by phone and confirm by fax. If they agree on the phone then confirm by fax. If they refuse then fax a ltter confirming that you did ask them and that you are disappointed etc.

Take a copy of which ever you send to the bank to the court today and if the bank have rfused then lodge an appication for an adjounrment with a fee and make it clear that it is an emergency application. The chances are that it will have toi be heard on Tuesday.

 

Make it clear in your application that that as you are acting in person you have only now discovered that a majority proportion of the Nationwide claim against you has no basis in law and that you need a month adjournment to take adive and that you will submit a counterclaim within 14 days.

 

In court on Tuesday, say the same thing. Explain to the judge that you have discovered that £XXXXX of the ammount claimed by NW are penalty charges which have been levied at an unlawful rate and that you are putting your argument together to deal with it.

Explain also to the judge that the "Overriding objective" - CPR r.1 is weighted in favour of granting you an adjournment (See the library for the CPRs).

 

You have a very good chance of getting an adjournment if you apologise a lot for the trouble caused. Then come back here.

 

You say in your private note to me that you feel that there is some advantage in losing your appeal and then dealing with you recovery clam later. I can't imagine why you should think this.

[disneyman]

Thanks for the advice. I am a little usure of who to contact to apply for the adjournment. Should I contact the legal firm who are handling the NW case or NW themselves i.e Charles Bacon.

 

smudge

[BankFodder]

both - quickly

[disneyman]

Good news all, Little did I know but the hearing has been re-scheduled for the 22 Mar. At least I now have a little breathing space!

[BankFodder]

Right, now you have to think about the stage you are at, amending your defence - if any or else submitting a defence and putting in a counterclaim.

 

You may need to apply for leave for all of this.

 

Where are you in your proceedings? you said somethig about an appeal.

 

have you been advised? by who?

 

If you are already at an appeal stage then it is going to be very tricky.

[BankFodder]

I understand that you have been given a default judgment. This is much easier.

You will have to apply to set it aside.

Is there any of the debt which yo admit and can you pay any of the admitted amount off?

[disneyman]

When completing the documentation we admitted to the whole amount. This was prior to us hearing about being able to reclaim fees however.

[BankFodder]

What was the date of the judgment?

 

I think that you will have to lodge an appeal and the judge won't be very pleased about it. Because your appeal would rely on a failure by the NW to bring a significant point of law to the notice of the court - as well as the interests of the "overriding objective" CPR 1, your chances of being allowed to appeal are probably just about 50/50 which is quite good considering the position you have allowed yourself to get into.

 

However, unless they are very brave, I feel that there is fair a chance that if you are given leave to appeal that NW may back down rather than face a significant ruling against them in court which will help everyone else who wants to get their money back.

 

Please understand that if you fail in your application to appeal or in the appeal itself that there may be an order for costs against you. Was there any order for costs made as part of the original judgment?

 

However, if you do not appeal then I do not expect that you will be able to recover your money in a separate action as to do that would be merely to circumnavigate the finality of the court's decision and they would not contemplate this.

 

By the wy, did you say something about an application for a charging order?

 

Finally can please indicate in your next post that you have read and accept the disclaimers in the forum rules and in the sig line at the bottom of each of my posts.

[disneyman]

The date of the original judgement is 14 Dec. which we then advised the court we would be unable to pay. They then transfered to case to York to allow us to appear before the judge to put our case forward and to explain our position. The judgement states that we are liable for £245 costs.

 

Why wont the judge be pleased?

 

because we would be appealing or because nw missed something?

 

They have also applied and currently have an interim charging order against out home.

 

I have read your disclaimers and accept the forum rules.

[BankFodder]

I have read your disclaimers and accept the forum rules.

 

Thank you.

***********************************************

He won't be pleased because a judgment which is sealed and handed down has a finality which can not normally be disturbed.

 

Because you are outside the time allowed for an appeal so that you will be asking the judge very exceptionally to allow an appeal in the interested of the CPR1 overriding objective.

 

Please be aware that there is a chance of failure and that even asking for permission to appeal would very possibly incurr a costs penalty. If you got permission then we may be able to turn it round for you..

Doing this remotely is tricky. Do you have any source of legal help close by?

 

As far as the charging order is concerned we can deal with that later.

[BankFodder]

To add a point, your chances of getting permission to appeal are improved because we will say that NW are themselves repsonsible for the problme by their failure to be open with you about the status of their charges and also by their failure to bring the point of law to the notice of the court.

Witout this, I wouldn't rate your chances.

 

If you have no legal help nearby then we can work it out here.

if you have a source of help nearby then it might be helpful if I speak with them and you can let me have come contact details by PM.

 

There is one solicitor who took on the Yorkshire bank and won and I think that they may have been in york. However, as you are not legally aided you would have to pay.

It is not at all impossible to do it yourself and you will find that once the judge overcomes his surprise he will feel bound to try and be sympathetic to your case against an experienced legal team.

[BankFodder]

To add another point, if you won, it would be quite a high profile victory. You would certanly make it to forum local hero but there might be some media attention as well.

[disneyman]

Hi BF, Im sorry but you have totally lost me now. I have lodged a appeal (by notice of reconsideration within the 14 day times frame) against the original judgement as I informed the court that I was unable to pay they then transfered it to York.

 

Or are you refering to the fact that we admitted to the amount owing.

 

I take it that if I were to find this solicitor you mention that I would have to pay him and would be unable to recover costs from NW.

 

S

[BankFodder]

I haven't heard of the term "reconsideration" being used in this way.

 

As I understand it you lost your case because you admitted the amount claimed. The court made an order that you pay within X days. you have now said that you can't pay and so they are now going to reconsider the way in which you must pay.

 

If this is correct then the only thing which is being reconsidered is the rate at which you pay or other means of enforcing the judgment. There is no hearing to take place in which you have said that you want to appeal against the judgment. NW want a charging order and presumably they will then want an order for sale which unless you have your familly living with you and it is a youngish family, they will probably get.

 

If you merely pop up at the next hearing, and say that you now believe that you shouldn't have admitted the whole claim and that the judgment should be changed the judge won't be very interested.

 

You need either to have the judgment set aside on appeal or else get permission to put in a counterclaim which as far as I can make out you can put in at any time.

 

If you want to do this then you should look at the CPRs in the library - part 23 and part 20 and start to understand a bit about it and we can work it out together.

 

If you want to get a solicitor then another user has kindly pm'd me the name of a York solicitor who has taken on a case against a bank and won. If you lost then I imagine that most of the costs would be recoverable from the NW. If you lost then yes you would have to pay some of the costs of the NW and your own solicitor.

 

I have also received some private info about the judges at York - one of whom I have been told gets extremely stroppy when he hears that big claimants haven't been teling the truth, the whole truth etc.

 

You now have to decide what you want to do?

 

Play 50/50? - not available, I'm afraid.

[disneyman]

Thanks BF it appears much clearer now. So the chances are that I would be unable to appeal!!!

 

Seems unfair given that criminals do it all the time in the light of new evidence.

 

If possible could you please forward (by pm) the details of the solicitor to me (just to see what his rates may be), and to have a chat with him to see if it would be a worthwhile venture.

 

Nevertheless Could I still make a claim against NW following the hearing in the normal way? as this would then cancel out the charge against the property assuming that I get the full amount and the debt is cancelled.

 

S

[diddled]

There willl a hearing to make the ChargingOrder Absolute, but if you have any other charges secured against your home, it would be very unusual, though not impossible, to have a 3rd charge.

If you have other unsecured creditors you could argue that they would be disadvantaged if a Charging Order in favour of the claimant was granted

[BankFodder]

I would say that the chances are that you would be able to put in a counterclaim. As far as I can gather you seem to be allowed to do this anytime.

 

I would suggest that you put in an application notice asking for leave to appeal and in the alternative permission to file a counterclaim.

You would have to let everyone know about this and we would have to draft the appication notice, the appeal and the counterclaim and have them all ready very quickly. All the documents would be also served on the NW.

 

I would then also write to the NW explaing the position and requesting their cooperation. The more they appear unreasonable to you the better it looks for you in court if you do get the permission you want.

If they amaze us all and agree then there will be very little problem.

 

The solicitors are called Jobling & Knape up Lancaster way, telephone 01524 598300, who recently represented Lakeland Inns against Yorkshire Bank and WON.

 

I have already telephoned them for you but the person you need is not available at the moment and will be calling me back.

I suggest that you let this happen and when I have explained the situation to him I'll let you know.

Please can you pm me your contact details.

 

 

Make an appointment very quickly with them. Don't waste any time because you will need to get these things in vey quickly - by Wednesday, really if it turns out that you aren't able to instruct him because of cost.

 

When you go, take all of your documentation with you - carefully arranged. be ready to tell a succinct coherent story. You ill need to show the solcitor/court that a substantial part of the debt which NW have sued you for is the result of disproportionate penalties. That this should have been brought to the attention of the court by the NW and also that their solicitors had a duty to recognise that these sums were not enforceable and they also should have brought this to the notice of the court.

Tell them about this forum and it would be kind if you would give permission for me to be privy to what goes on. In confidence, of course.

[disneyman]

Some of you who are watching this subject may be thinking that all has stopped and maybe he has dropped the case. Not so, quite a few things have been happening behind the scenes under the careful guidance of Bankfoder whom I wish to give my many thanks. Some of the grounds for appeal/counterclaim could well be groundbreaking and so do not wish to go into more details just yet until we know the outcome, but papers have been lodged today at the county court to begin the process of claiming monies back from Nationwide.

 

We will keep you informed but it may well be a slow process so please bear with us.

 

smudge

[disneyman]

Some of you who are watching this subject may be thinking that all has stopped and maybe he has dropped the case. Not so, quite a few things have been happening behind the scenes under the careful guidance of Bankfoder whom I wish to give my many thanks. Some of the grounds for appeal/counterclaim could well be groundbreaking and so do not wish to go into more details just yet until we know the outcome, but papers have been lodged today at the county court to begin the process of claiming monies back from Nationwide.

 

We will keep you informed but it may well be a slow process so please bear with us.

 

smudge

[BankFodder]

Some of you who are watching this subject may be thinking that all has stopped and maybe he has dropped the case. Not so, quite a few things have been happening behind the scenes under the careful guidance of Bankfoder whom I wish to give my many thanks. Some of the grounds for appeal/counterclaim could well be groundbreaking and so do not wish to go into more details just yet until we know the outcome, but papers have been lodged today at the county court to begin the process of claiming monies back from Nationwide.

 

We will keep you informed but it may well be a slow process so please bear with us.

 

smudge

 

You did it! Well done and good luck

[BankFodder]

Some of you who are watching this subject may be thinking that all has stopped and maybe he has dropped the case. Not so, quite a few things have been happening behind the scenes under the careful guidance of Bankfoder whom I wish to give my many thanks. Some of the grounds for appeal/counterclaim could well be groundbreaking and so do not wish to go into more details just yet until we know the outcome, but papers have been lodged today at the county court to begin the process of claiming monies back from Nationwide.

 

We will keep you informed but it may well be a slow process so please bear with us.

 

smudge

 

You did it! Well done and good luck

[disneyman]

An update for you all. We have lodged an application at the County Court to set aside any judgments which Nationwide may apply for. The date for this hearing has been made for the 22nd March to be heard at the same time which Nationwide have applied for the charge on the house.

 

We believe that we have an 80% chance of winning the Set Aside while the dispute over the bank charges is resolved either by a counterclaim or to submit the claim from the beginning.

 

Should the judge grant the charge to the Nationwide then we will apply for a counterclaim immediately from the judge.

 

Nationwide however have since been in touch and have made a part 36 offer to me to repay the debt at a reduced amount (i.e. instead of us repaying £2500 they have offered to accept £1944 to resolve the case). We are unable to repay this amount at present and in any case believe that this is a poor offer.

 

We have replied rejecting this offer indicating to them that we shall see them in court.

 

Myself and Bankfoder (a guy to whom I owe a great deal to over this issue, as we would have rolled over by now and let them walk all over us) are now eagerly beavering away at formulating a defense for the 22nd.

 

I am however seeking a solicitor/lawyer or person who speaks "legalese" who is knowledgeable over these issues and who is available on the 22nd to attend York County Court to put our case forward to the judge. At the moment it will be me in the chair and I’m not to confident over legal issues which may arise on the day, which I would be unfamiliar with. I do not wish to jeopardize any other hearings which may arise with other persons through myself making a pigs ear of this initial hearing.

 

Any volunteers?

 

smudge

[disneyman]

Letter from NWs Solicitors today stating that they will speak to their clients over our rejection of the part 36 offer and "revert back to us shortly".

 

mmmmm Love to know whats going through there minds!!!