Hi Louis, I guess what I really wanted to know was how does a Judge view inaccurate defences? I assume it looks good on me that I have bothered to inform all parties, but can a defence be changed before going to court and if it can have I therefore messed up by letting Barclays Woolwich know? Thanks, Penfold

Hi, This is not about Bank charges and rather than going into detail all over again, I would just like advice or info on what happens if I have taken a Bank to Court. The acknowledged and put a defence in. The defence however is inaccurate and provable as such. Do I write to the court to let the judge know, do I write to the defence sols and tell them, or just leave it and see them look very silly in court? Thing is I do not want them to go to court, but settle before so I have written to the court and informed the defence legal team too. I am hoping in doing so they will realise they are in trouble if they go before the Judge and settle out of court. Am I right in theory or just dreaming? Thanks, Penfold

Ok, really puzzled now… NatWest’s sols Cobbetts have sent me an acknowledgement of service and sent me the standard one they are sending out regarding bank charges. But my case is not about Bank Charges! Will the Judge laugh and ignore them or will a stay be filled on this case? Should I write to Cobbetts and tell them to read the POC once again or leave it and go for judgement when they file the wrong defence? Advice please… Thanks, Penfold

Update: Got the General Form of Judgment or Order today to say that the District Judge has said the following: THE COURT OF ITS OWN INITIATIVE ORDERS THAT 1 This claim is stayed until 31st March 2008 with a view to awaiting the decision in the test case 2 Either party may apply at any time, by application on notice in accordance with CPR 23, to life the stay 3 If no such application is made, the court will give directions of its own initiative on the expiry of the stay I have of course submitted an application to set aside the stay. I will keep this updated if I succeed. I notice from reading other posts that HSBC do have cases going through and even settling cases still. I hope the judge reads the file properly and notes that because I did also add that bit in my application. Penfold

OK, So rightly or wrongly, I have written to the court manager to pass a note to the judge when he reviews this file. The note in a nutshell says that the debt was not "settled" as Barclays have used in their defence. It mentions a few other bits and then basically asks for him to strike the defence out or at least request the evidence to confirm what the defence is saying. In meantime I emailed my guy at Barclays to say this is what I have sent the Judge please respond nicely before this gets to court and you look silly. Guy is not there so rang up and got another nice lady who said to email her and she woudl pass onto someone else who would deal with it. I hope they just settle and we can get this over with and it can open a whole new can of worms for others on here to get stuck into... Penfold

Thanks Mr Blue Sky, but on reading it does not really help me with this one. Penfold

Hi, I have just read a post from someone in June regarding an overdraft case in the name of Coutts v Sebastyen. How can I find out what the result was and what it was all about? Anyone please? Penfold

Hi Sequenci, I would appreciate the info/ help. Although I am still banking on the fact they will not want to go to Court. They will look very silly quoting incorrect info in their defence and with regards the Wilson case, I know what you mean, however, I thought I read within it something about payments from the credit company being returned due to the lact of a legal agreement? Maybe I am thinking of another case, but at least it is a case to try to push Woolwich with and make them insecure...I hope, Penfold

Hi, With regards tracking it is amazing what some of them try these days. I got a letter for someone with the same surname as me! I sent it back as unknown and they wrote back to the occupier asking where this person had gone! LOL I rang them and told them never to write to me again! Unreal they said they got it from Experian, but I checked my files (3 different ones) and this person is not linked to me or my address in any of them! They got it from the phone book I recon! Penfold

Point taken...Thanks, I will leave it at that. I have Nat West on the same thing, but I actually have a letter from their Cheif exec confirming the debts are unenforceable...lovely... Penfold

Ok, Thanks for that lookingforinfo, The debt was not paid in 2005 like they have stated and like I said I have letters from Equidebt chasing higher monthly payments! I entered the IVA in 2005 and Woolwich were on the court papers. I settled the IVA early last month so technically it is settled now, but there is no payment to Woolwich from my IP so either they withdrew (after my letters) or my IP agreed with me that they had no claim and did not pay them. I honestly do not know, but I do know what they have written in the defence is most definately wrong... Point taken so I will wait until directions from the judge then depending on timescale email my Barclays Litigation chat a nice little bombshell, how about: Dear XXXXXXX, Thank you for your letter with the defence for Woolwich Bank please be aware that this is not a personal or moral issue, but a matter of legalities and responsibilities. I could very easily just wait for the Judges directions and even our date in Court, but I hope my responses to your defence may help us resolve this earlier and hence not wasting the courts time. Failing that at least I can show the Judge I am trying to resolve the matter. I am happy to continue to communicate via email if you wish, as it saves postage, paper and our planet. What I would like is for your client to admit the case, and be finished with it. I will accept a Bank Transfer/ cheque, as I stated previously, for £1636.00 and that will be that, claim 7LU02480 finished with! I will answer your defence after each point you raised, please feel free to reply or not, as you see fit, though an acknowledgement would be nice. I would also like to point out that I understand case number XXXXXX has just been awarded Judgment. That case was against Monument (Barclays Bank) and whilst I appreciate each case is different it has similar issues with no legal credit agreement in place. 1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998 It is admitted that the Claimant had a Woolwich current account number XXXXX Well at least I now know the account number. I was never given this information in any of the eight different letters I received from Woolwich/ Barclays/ Equidebt/ or Heatons. You would have thought that was the first simple piece of information I could have been given. 2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038 Well this is the first incorrect fact you have quoted. I was actually supposed to repay a total debt of £1778.05 NOT £1038 as you have quoted. I have a statement of account from Heatons Solicitors regarding this debt who have confirmed this amount and the payments I made. 3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant This is admitted This was not complied with and hence Barclays/ Woolwich are in breach of the Consumer Credit Act. I understand this debt is from a current account with an overdraft. This is most certainly regulated under the CCA and I do not need to tell you that. 4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder. It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise. I believe I said I was not the “main” account holder even if the account was joint. This was my ex-wife’s account and I was added on later. These have not been supplied as yet. I did not say I was not an account holder. I asked for the terms and conditions in place at the time I was added to this account. I am saying I believe it to be inaccurate because I have no records on the said debt apart from being told over the phone it was an overdraft that was not paid back. As such I believe I am within my rights to question this account, how it came about and everything about it. You are asking me to prove this, however, I cannot without seeing statements of the account and further to 3 above they have not supplied this to me. 5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable. Overdrafts and any credit under £25,000 are regulated under the CCA. Therefore once again Woolwich are in breach as they have not supplied any details whatsoever regarding the debt or account. 6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception. Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”. Ok where do I start…In simple English for your client there is no Law or Statute that says data must be destroyed only guidelines. I believe (and obviously your client thinks I am wrong) that I have a right to question the accuracy of information held on me. Especially from a Bank who says I owe them money when recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in what I said. By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? What was account number 3WXXXX\54\1 all about then? This was the Equidebt account number so even if you say the original account was closed or frozen another was created in its place and given this was also still directly linked to your client, the Defendant. Surely this merits being an active account as transactions are regularly taking place on it and I am sure a Judge would agree with me on that point. If you want to argue that point then why was the account closed with Equidebt in 2005 and they passed the files back to the Woolwich? I have a letter from them to confirm this point. Is the closing of the Equidebt Account (due to the creation of my Individual Voluntary Arrangement in 2005) not a transaction as well? Are you saying that your client was in direct breach of the FSA regulations then as well as what I am claiming they are in breach of? 7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis. The defendant denies that account number XXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance. Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments! The debt was not sold on and so Woolwich were in direct receipt of the monies paid. As stated before even if you wish to say the original account was frozen another one was created. Please provide me with the definition of what your client defines an account as and also where I signed to agree with that definition. In any case I think I might just let the judge decide on the definition of an active account. 8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3). The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007. Firstly, as stated before an overdraft is regulated under the CCA so there must have been an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! This debt has not been repaid in full, I am sorry to say you have been misinformed here! I have letters chasing me in 2005 for payment and it was entered in the Court bundle when my IVA went through in 2005. If your clients were not trying to enforce it why was it entered into the IVA and why did they not say that I had paid this off in full? So they were in fact still enforcing the debt as I understand they even voted at the creditors meeting. As I am not a lawyer I do not understand what you said about Section 127(3) only applying to regulated credit agreements after 2007 when it was in the CCA in 1974? Please could you clarify this for me? 9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40. The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision. Please refer to the above paragraph as Woolwich were in fact still trying to enforce this debt. As for the case, it is all about a non existent credit agreement where the defendant had to refund all payments made. As I stated initially you may wish to refer to case number XXXX for a more recent case, where Barclays (Monument) were trying to enforce an unenforceable agreement. 10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account. The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited I would not expect you to say anything else as I understand you have to go through the motions. Can I make this any better anyone? Thanks, Penfold

Hi Sitcom, I thought the days of "Debtors Jail" were long gone? You daughter needs to let you know if she has any idea what these "fines" were for and when, what contact she has previously had from the creditors. This will enable a clearer picture. Penfold

Me too...I am not holding breath, but I really do not believe they will let a judge decide for such small amounts, surely their barrister would cost more than I am claiming? I just want to see their face when we go to court and they repeat the defence and I say "actually your honor, that is not right, here is proof that they were chasing the debt, it was entered into an IVA in this very Court and so what is their defence all about really when they have breached the CCA?" What you recon? No chance or slim one? Penfold

No defence needed to be filed by MOnday and they sent directly to me. I know what you mean about the Wilson case, however, is it not worth a try? Are Barclays going to really wait and see what the Judge says especially if they are uncertain what I have on them since they have so little on me (apparently). So what is the opinion, should I let Barclays litigation know they got it wrong or let them look silly in court, cause I will go... As for getting money back...I have been told by HSBC I will not get my charges back, how many of you out there have also been told things by the Banks or even defence solicitors? I do not expect to get it back, however, if I do great or at least I can ask the Judge to get them to refund the court costs as they should have acknowledged the debt did exisit, give me my account number and be more cooperative towards me. Votes please... Penfold

I was thinking of writing a type of nudge letter to Barclays Litigation, but now I am thinking let's go to court and then bang I tell the judge the above points and let the barrister/ lawyer look a plonker without knowing the facts about his client...Or am I withholding info? Am I obliged to tell them they have the wrong info? Penfold

The debt was not paid off. I paid a total ove £1038 over 9 years to Equidebt, I was still being threaten in 2005 for the other £740. Due to other financial pressures I entered an IVA and the remainder of the debt was put into that. If it has been paid off at all it was last month when I completed the IVA early bu selling my home! I asked Woolwich for T&C's when my account was opened, they have not supplied, I asked for default notice and info, they have not supplied, I am the Claimant they are the Defendant, why is the owness on me to prove as per their defence rather than them to show me given I am taking them to court? Penfold

Which bit in particular? Just curious Penfold

Sorry can't help you with that as would not know one if it hit me in the face! But do know they (banks) have taken most of us for a ride and used our lack of legal knowledge against us. I have just had a defence back from Woolwich that is full of BS and legal jargon to put me off (IMHO of course but what do I know) Penfold

Sorry Sequenci, but I have had many many moral battles over the years including the messy divorce that created this debt in the first place! Anyway see below and please please anyone have any ideas? By the way I started quering this early this year after settling my IVA, but note not once in 6 odds letters from Woolwich/ Barclays have I been even given the account number! So where did they make the below up from exactly? OK Got Woolwich defence today (waiting for me at home). I will post my POC with the defence underneath each one. Please help in picking holes in any of this…. 1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998 It is admitted that the Claimant had a Woolwich current account number XXXXXX Well at least I know the account number now as they never told me it in any of their correspondences! 2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038 3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant This is admitted 4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder. It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise. I believe I said I was not the “main” account holder even if the account was joint. I did not say I was not an account holder. I am saying I believe it to be inaccurate because I have no records on the said debt. As such I believe I am within my rights to question its contents, how it came about and everything about it. Or am I wrong? Do I need to prove it is inaccurate or is it down to the Defendant to prove it is not? 5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable. Overdrafts and any credit under £25,000 is regulated under the CCA or am I wrong again here? If I am right then they are in breach as they have not supplied any details whatsoever regarding the debt or account 6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception. Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”. Ok where do I start…In simple English for the Defendant there is no Law that says data must be destroyed only guidelines. I believe (and obviously could be wrong) that I have a right to question the accuracy of information especially from a Bank who says I owe them money whenever I feel like it especially if recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in my statement. By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? Is the closing of the Equidebt Account (due to the creation of the IVA) not a transaction as well? 7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis. The defendant denies that account number XXXXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance. Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments! 8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3). The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007. Well this is where I think this gets interesting…Firstly, as stated before an overdraft is regulated under the CCA so there needs to be an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! So this blows this out of the water OR am I missing something once more? This debt has NOT been repaid in full! I have letters chasing me in 2005 and it has been entered in the Court bundle when my IVA went through in 2005. Funny if they are not trying to enforce it why was it entered into the IVA and why did they not say “hold on, you have paid this off mate…”. So they were in fact still enforcing the debt. I do not understand the bit about Section127(3) only applying to regulated credit agreements after 2007 when it was in the CC Act in 1974? Can anyone explain to me what they are on about? 9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40. The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision. So since I can prove they were trying to enforce it I guess that blows this one out too? As for the case, it is all about a non existent credit agreement where the credit company had to refund all payments made…in a nutshell anyway. 10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account. The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited LOL they are hardly going to say have it here mate… 11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant. Is not admitted 12. Accordingly the Claimant Claims: a) the return of the amounts paid to Equifax Limited in the sum of £1038; b) Court Costs; c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 28/05/1998 to 06/07/2007 of £478.37 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.23 I believe that the contents of these particulars of claim are true. This is denied So I recon their strongest sections were if I had paid this off and they were not trying to get money out of me. Can anyone please tell me if the customer has a right to question their account at any stage and if so is it in any legislation or just in terms and conditions? Thanks, Penfold

Hi Dera, I agree with you and unlike many others on here do not believe that the banks should get away with being inaccurate, naive, arrogant or whatever else you want to call them! Everything they do is legal and fine, but question them at your peril...Read my post today regarding Penfold V Woolwich and you will see I am actually taking them to court. I want my day in court and want to hear them issue the words "he owes it, we can't prove it, but he owes it..." Cannot wait to hear what the judge says! Penfold

Because I should not have been forced to pay it in the first place! I did not spend it, I have no records on it nor do the bank. Why should the Bank be allowed to force me to pay it? Is that not the better question? I am questioning the legalities not the morals Sequenci! Bank charges are legal too remember??? Penfold

Then bankrupting you would be pretty much pointless...They are probably (IMHO) trying it on. Got to go, but others will be around. Read this too: http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html You will be fine do not talk on phone and if anyone calls tell them to put in writting... Penfold

Please break down the debts and do you own your own home? Also read http://www.consumeractiongroup.co.uk/forum/general-debt/56970-insolvency-dealing-debt.html Penfold

Sorry is the total debt £2800? If so they are talking rubbish as to bankrupt you for that is not worth it! Bankruptcy, from what I know is not a quick process either! Sorry are Connaughts solicitors or debt collectors? If Debt collectors send them the same CCA letter including £1 and recorded del. If they are sols then send them the letter you sent their clients and a copy of the recorded slip to show it was served. Then sit back and wait until they respond or send you the documents. Penfold

Hi Jenny, What types of debts are these and also how far down the line are you on them? Did you send all the CCA letter recorded del? If so and you copied the template you have stated that the accounts are in dispute. Explain this in a letter (recorded) to Connaught to say the same. They will struggle to get a judge to listen if accounts are in dispute. More knowledgable people will be along soon no doubt, but hopefully that is a start for you. Penfold