I hope someone might be able to shed some light here please.

I HAD a joint account with my wife.

To cut a long story short, the Bank attempted to take me to court for an alleged debt

(there is a lot around this subject but not for now),

however there was an ongoing complaint at the time which went to Ombudsman.

As as result I never submitted a Defence, and the Bank never attempted to receive a Default Judgement.

As such the Claim was stayed after 6 months (as per CPR).

The Bank is now attempting to harass my wife now over this using 3rd party interlopers.

This is of no concern to us.

We do not acknowledge the alleged debt, or account exists.

However, my question is this:

Can a Bank take out a separate claim ("sue") for the same alleged debt where there is a joint and several clause in a contract?

My understanding is that when a joint and several clause exists the Bank can only sue once for the debt.

Any thoughts anyone?

Even if it were true, the last litigation is only stayed and not complete. No judgment has been given.

"Even if it were true...", which part don't you believe?

The court confirmed that the case is currently stayed (over a year ago). Does anyone know if there is a time limit for an application for a stay to be lifted?

You can use the stayed claim as pending litigation...therefore any new challengers would be wise to jog on.

Andy

How do I make the claim un-pending for want of a better term?

Is there a statute of limitations type thing for stays?

Or, better to let sleeping dogs lie.

As for new challengers,

the Bank hasn't claimed to have sold the alleged debt on,

they are just using 3rd party interlopers to act (harass) on their behalf,

of which I am under no obligation to enter into dealings with.

I'm just hoping that there is something I (my wife) can write back to the Bank,

to the effect of,

"there is pending litigation regarding these matters, as claim XXXXX, which is currently stayed,

as such why are you harassing me in relation to these matters?"

That is all you actually need say to the Bank, sending a copy to the 3rd party interlopers as well.

Dear Sir or Madam (or named person).

 

Account references

Court Claim reference.

 

You have been sending letters/making phone calls, which appear to be an attempt at harassing me/my wife/us. Please be aware that there has already been a Court claim issued on this matter which is currently stayed as of (DATE).

 

It is suggested that you return this account to your client. If you continue to send letters or telephone after receipt of this letter - I will be escalating this complaint to the regulators.

 

Yours etc.

Either party can apply to have the stay lifted by using form N244 (I think that is the one) however it would cost you £155.00 to do this and it could possibly end in a hearing on the original claim.

The letter above puts the ball back in the court of the Bank and depending on the reason for them not taking it further in the first instance, they might apply to have the stay lifted themselves.

"Even if it were true...", which part don't you believe?

 

I was referring to your question regarding the bank taking out a claim etc I meant that even if what you said was 100% true that their might be scope for a seperate claim as the previous one is just stayed. Therefore untill the case is disposed off one way or another it is not considered resolved.

Im wording this wrong. I mean on a factual basis Of course i believe you are telling the truth

I did not serve or file an admission or file a defence or counterclaim and the claimant has not entered or applied for judgement (default or summary).

I have received no correspondence from the Claimant or their solicitors since on March 2013.

The Court confirmed in writing (email) that

"the case was stayed due to no action on the 2 October 2013"

My understanding is that to make an application to have a stay lifted you would require new evidence, i.e. something over and above why default judgement was not sought.

I was referring to your question regarding the bank taking out a claim etc I meant that even if what you said was 100% true that their might be scope for a seperate claim as the previous one is just stayed. Therefore untill the case is disposed off one way or another it is not considered resolved.

 

Im wording this wrong. I mean on a factual basis Of course i believe you are telling the truth

I think I know what you mean - LOL

I am curious why no default judgment was sought. you dodged a bullet there

worm

when was this?

thinking of a recentish con credit act change re if joint and regulated, then any claim wld have to be against both names? ie cant then 'sue' one or the other, has to be both.

It is my understanding that you could ask for the stay to be lifted and the claimant prove their case or withdraw it. They issued a claim on the basis they had a reason to sue you. They have not applied for a default judgment or continued with their claim. IMHO, their subsequent behaviour is disgraceful and kind of implies that they have no evidence on which to further the claim.

There have been cases where claims have been stayed for a few years - longer it is stayed, the better obviously.. but if you don't want to be harassed by the bank or their agents..

Thanks for all the replies people

It is a weird one I appreciate. To add some flesh. It was a joint bank account since mid 90's!! Originally a current account but I was then mis-sold into taking out one of those paid-for accounts (I may look into some compensation for that at some time). It was in both my and my wife's names.

The reason they did not seek default judgement is because when they took out the claim against me (not me and my wife) I had already instigated an official complaint which was still ongoing. I made them aware of this and they instructed their solicitors to hold fire until the conclusion of the complaint and the outcome of an ombudsman if I took that route.

The timings of this may have messed with their plans a bit, but if I recall, the ombudsman's findings where within the 6 month timeframe from the deadline for me responding to the claim, however the bank did not act on this for a default judgement.

Now if they believe the money is still owed then why now change tack and attempt to harass my wife. I think it is disgraceful. I have even provided a letter for my wife to send the bank stating that I take sole responsibility for the alleged debt and the account, and I also made sure both I and my wife referred to the previous stayed claim.

Very strange and immoral behaviour IMO

If only you were named as Defendant then a second set of proceedings can be issued against your wife. The only real issue would be their duplicated issue fee and costs etc.

Do you know this for certain?

I wasn't named as Claimant, but as a Defendant.

The reason I ask is because Wikipedia (ahem) suggests under Joint Liability that

"... in suing, the creditor has only one cause of action; i.e., the creditor can sue for each debt only once.

" LINK

Sorry, yes I meant Defendant. Apologies.

The full quote you refer to is:

"However, in suing, the creditor has only one cause of action; i.e., the creditor can sue for each debt only once. If, for example, there are three partners, and the creditor sues all of them for the outstanding loan amount and one of them pays the liability, the creditor cannot recover further amounts from the partners who did not contribute to the liability."

You haven't paid the debt have you?

You said said that there's a joint and several liability clause in your contract didn't you?

I do not accept that a debt exists, so naturally I haven't "paid the debt".

They refer to a "joint and severel" [sic] clause,

however despite repeated requests they have failed to provide me with a copy of a contract,

using all manner of excuses,

the latest being that they are not obliged to keep contracts older than 6 years

(despite the request being in 2012 and the alleged contract being 2009).

But regardless of this,

the wiki quote still says "...the creditor can sue for each debt only once..."

and I would interpret this to mean that each action (claim) counts as one,

therefore if there is a stayed claim and then the bank attempts to sue (claim) again (for the same debt)

with a different defendant, then that would be suing twice for the same debt.

Interested to hear other thoughts though - thanks.

Fair enough. Wait for Court proceedings to be issued against your wife and use that as a Defence.

Why don't you acknowledge the bank account debt? Any chance of a bit more background?

I am trying to ascertain if indeed it is a viable defence.

Also, I am trying to understand more about stays on proceedings

and whether there is a time limit on either party to make an application for these to be lifted.

Anyone?

As for background.

In short. Bank wanted me to make "additional credits" into the account (which was overdrawn but within limit)

as they were "concerned with the lack of credits being applied".

I said, I am not aware of any obligation to make additional credits

and if they believe I am to show me a contract and terms that state as such.

This went back and forth and then bank started to demand I repay all the money

but continued to fail to honour my request!!

I was not in a position to make additional payments

and I determined the maximum amount I could afford to pay back was £25 per month.

I stapled a cheque to an official offer to this effect and the bank duly returned it.

I sent it back again with the offer, the bank returned it again.

I sent it back again from a different bank account this time (again cheque stapled to offer),

only this time I was in a position to make payments of £50 per month.

The bank accepted the offer by removing the cheque and lodging it.

I continued this for months and then the bank returned another cheque.

I returned the same cheque the next month along with a further £50.00 for that month

and said that if the bank refuses to accept my payment via our contract

then both parties agree and acknowledge that no debt exists.

They returned the cheque.

The debt became extinguished therefore I do not acknowledge any debt.

Whether you agree or not is irrelevant really,

but that is what happened and I am comfortable with it.

I made every effort I could to continue to discharge the previous debt

and honour any existing agreement/contract/arrangement but the bank refused my payments.

In relation to the stay, there is no time limit as such. The Claimant would need to make an application to lift the stay and proceed which would be at the discretion of the Judge. The longer it is left, the harder this will be.

It is 18 months since the stay and they have resorted to tactics of 3rd party interlopers. If they have a valid case and an ongoing claim why not lift the stay for a couple of hundred quid?

Unfortunately I'm not the Claimant and I left my mind reading device at home.

Glad that we have ruled you out as an employee of the bank then - lol

The pending litigation would have to be withdrawn or discontinued before they can instigate further litigation against either your or your wife separate or joint.

Andy

Hi Andy - these were my thoughts too but I have nothing to substantiate it. Do you?

I guess they would have the option of applying for the stay to be lifted and then adding my wife as a co-defendant.

Not sure whether that would be much of a goer for them though as it begs the question,

why wait 18 months if you have a strong case?

This isn't the case I'm afraid.