NR/Wallers Claimform - £29k Pers Loan *DISCONTINUED*

[womble72]

Hi Paul,

 

Thanks for your support.

 

It will be sometime in January in a court in Surrey.

 

Kind Regards

 

Womble

[out of cash]

Hi all,

 

northern rock doing the same to me going for charging order or they are about to try

[nicklea]

Hi Outofcash,

 

You sent me a PM and I'm replying here as it's relevant to this thread. You also mentioned on this thread about a charging order. That's a totally different matter and outside of the scope of anything I could possibly comment on, I'd suggest that you start your own thread on that issue.

 

You mentioned a case that Northern Rock's solicitors were quoting:-

 

Forward Trust ltd v Whymark Court of Appeal 11 July 1989

[1989] 3 All ER 915, [1990] 2 QB 670, [1989] 3 WLR 1229, CA

 

I don't have access to all the law databases to find out about it in detail (you might need to ask some one like pt2537 for this) I got my information about the case from the Times Law Report 25/7/89.

 

It would be good if you could ask Paul (pt2537) if he can find any subsequent cases that contradict this one.

 

Whether this case is applicable depends on if the credit agreement is a "flat" rate or a "simple" rate agreement. To find this out you need to look in detail at the T&Cs of the agreement.

 

If there is a term included in the agreement that they can charge interest after judgement then it is a "simple" rate agreement and Forward Trust v Whymark doesn't apply as, in that case, there was no provision in the T&Cs for charging interest after judgement.

 

If there is a term in your agreement that says something like:-

 

Interest on the amount which becomes payable shall be charged until payment after as well as before any judgment (such obligation to be independent of and not to merge with the judgment).

 

Then you have a "simple" rate agreement.

 

If you do have a flat rate agreement then, unless Paul can find something to the contrary, it does look like this case is applicable. However there is one thing that is very important to remember. Basically, what this case said is that if you have this sort of agreement then the bank can claim the full amount including all the future interest without taking acount of the early settlement regulations , although they cannot claim any statutory interest on top of this.

 

However, if you have a look at what says below (I have just taken it directly from the LAw Report) what it says is that if you do find the money to somehow repay before the original end date on the agreement then you are entitled to a rebate and so won't have to pay the full amount of the judgement and that this should be included on any order made by the court.

 

On this basis, the debtor's position at the date when judgement was entered was that he owed the full outstanding amount, and that there was no reason why judgement should not have been entered in that amount. Only when the debtor made a final payment of the agreement could a rebate (if any) be calculated. The following effects of this judgement were noted by the Court:

(1) Where a county court permits payment by instalments, it will need to ensure that, if discharge of the debt is going to be completed ahead of the original term of the agreement, the creditor does not gain the advantage of not having to pay a rebate which would otherwise be due.

(2) A judgement for the full outstanding amount should never be ordered to be enforced by the High Court (since this could create problems of interest being charged on interest).

(3) If in the future County Court judgements are allowed to bear interest, an exception must be made for judgements in respect of consumer credit agreements to which the rebate provisions apply. However there should be no bar to judgements attracting interest after the date of expiry of the original agreement.

(4) Means had to be found for informing the judgement debtor that, in some circumstances, he might be able to discharge the judgement by paying a rebated amount, and for informing bailiffs that their right to execute against goods would not extend to taking more than was sufficient to satisfy the judgement debt less the appropriate rebate.

Lord Donaldson considered that forms of judgement should be endorsed or specially printed to include the following wording:

"The judgement debtor can satisfy his obligations under this judgement by paying the full amount adjudged due from him less any rebate for early settlement to which he may be entitled under the Consumer Credit Act 1974 and regulations made thereunder.

"The judgement debtor can find out whether any rebate is applicable, and if so the amount of the rebate by inquiry from the judgement creditor. In the event of dispute, the judgement debtor should apply to the court for a determination of whether he is entitled to any rebate and if so its amount."

This form of judgement would also alert bailiffs asked to levy execution to the need to take into account of the amount of any rebate likely to be applicable

 

However, if it is a simple rate agreement then that doesn't apply and there was a case in the House of Lords that is relevant:-

 

Director General of Fair Trading V First National Bank [2001] UKHL 52

 

which basically said that creditors can claim interest after judgement if it is in the T&Cs. In this case they wouldn't get judgement on the full amount outstanding including all the future interest because then they would be getting interest on top of interest.

 

So, it depends on what the T&Cs of your agreement actually say.

 

However, when I was looking at the First National Bank case I did find some things that I think could have a wider relevance to more people. It's sections 129 and 136 of the CCA. These say that if a time order is made then the Court may amend any details of the agreement that it sees fit.

 

Reference was made in the First National Bank cases to Southern and District Finance plc v Barnes [1996] 1 FCR 679 and two related appeals. My apologies if these are well known to people but I hadn't come across this before and never really looked at these sections of the CCA.

 

 

 

In the original First National Bank case in the High Court [1999] EWHC Ch 206 the Judge said the following at p51:-

 

...It seems to me that the complaints of borrowers which have been the cause of the bringing of these proceedings by the Director might well be met if the judgment of the Court of Appeal in Southern District Finance Plc v Barnes and in particular the way in which one of the County Court Judges dealt with one of the cases under appeal and the Court of Appeal's reactions to his method, were more widely known to the professions and other advisory bodies.

 

and at p22:-

 

The Director's complaint as to the effect of clause 8 [this is the clause enabling them to claim interest after judgement] of the Bank's form of agreement only arises where the Court has extended the time for repayment of the amount lent by making an instalment order. It is plain from the passages from the judgment of Lord Justice Leggatt in the Barnes case which I have set out above, and in particular from his approval of the order made under one of the judgments being considered, that any County Court being called upon to enforce one of the Bank's loan agreements containing clause 8 would have power, if it thought just to do so, to negate any harsh effect of that clause by reducing the rate of interest payable under it, if necessary, to nil.

 

The order was given in p19:-

 

1. In applying these principles to one of the judgments appealed from Lord Justice Leggatt said this at page 71:-"When the Judge re-scheduled the instalments under the agreement he did so over a fresh period of fifteen years. Since nearly three had passed since the agreement was made, this had the effect of extending the total of the agreement to nearly eighteen years. The Judge reduced the rate of interest to nil, since otherwise throughout the extended period of the loan interest would have been payable on the arrears at the exorbitant rate prescribed, and that would have defeated the purpose of giving time. In effect as a sanction for non payment of instalments a suspended possession order was substituted for a penal rate of interest. The Court gave the plaintiff leave to appeal against his order, though the Judge's methods were robust and his reasoning economical, his instincts were sound and his order just. I would dismiss the appeal."
    
    
   
   
   

This was picked up by Lord Bingham of Cornhill in the House of Lords case where he said:-

 

27] In conclusion, I would add a footnote on ss 129 and 136 of the 1974 Act. In the course of argument the House was referred to the decision of the Court of Appeal in Southern and District Finance plc v Barnes [1996] 1 FCR 679 and two related appeals. The effect and interaction of ss 129 and 136 were there considered.

[28] Of s 129 the court said (at 686):

‘When a time order is made, it should normally be made for a stipulated period on account of temporary financial difficulty. If, despite the giving of time, the debtor is unlikely to be able to resume repayment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it will be more equitable to allow the regulated agreement to be enforced.’

I would in general agree that time orders extending over very long periods of time are usually better avoided. But I note that the court dismissed an appeal against a judge who had rescheduled payments over a period of 15 years (‘Though the Judge’s methods were robust and his reasoning economical, his instincts were sound and his order just’ ([1996] 1 FCR 679 at 689)), and the broad language of s 129 should be so construed as to permit the county court to make such order as seems to it just in all the circumstances.

[29] Of s 136 the court said (at 686):

‘The court may include in a time order any amendment of the agreement, which it considers just to both parties, and which is a consequence of the term of the order.’

In the case already referred to the judge had ordered that no additional interest should be payable beyond that which had already accrued, and the Court of Appeal upheld his decision. It was right to do so: provided the amendment is a consequence of a term of the time order, the court should be ready to include in a time order any provision amending the agreement which it considers just to both parties.

 

 

So, it looks like there is definitely some scope, if you are faced with an enforceable agreement to mention in your defence about time orders and s136. But I think that this is the sort of thing that needs to be drafted by one of the 'proper' legal people that we've got here

 

Hope this helps

 

nicklea

[out of cash]

hi nicklea,

 

many thanks for your reply some heavy reading for me:D

 

regards

 

out of cash

[womble72]

Hi Out of cash,

 

Have you had any paperwork from the Nr yet about a date for court ?

 

Kind Regards

 

Womble

[pt2537]

Womble,

 

please clear some space in your pm inbox,

 

ive tried to contact you with some important info and i cant because it says your box is full

[nicklea]

Hi, Nick, we (me, paul, and curly) were discussing this earlier, and we agree with you.

 

Edit: What really takes the p**s is NR has a interest after judgement clause, so after getting their extra money, they will try for interest on it after the judgement.

 

Womble,

 

I was just rereading this thread and, if you have seen my previous thread about "flat rate" and "simple rate" agreements, then if Northern Rock do have an interest after judgement clause as tomterm says then they cannot rely on the Forward Trust v Whymark case that OUtofcash says their solicitors are trying to rely on against him and they do need to take account of the Rebate on Early Settlement Regulations as tomterm refered to in the defence he wrote for you.

 

regards

 

nicklea

[womble72]

Hi Nick,

 

If my case goes to court then they have to take the early repayment into consideration.

So they also cant add extra interest on top of the after judgement ?

 

Womble

[nicklea]

Hi Womble,

 

In the defence that Tomterm did for you he mentioned that there is a clause in the T&Cs that entitles NR to claim interest after judgement:-

 

30. I particularly note that the significance of failing to include the rebate in any default / court claim is that under term 5 ii it would enable Northern Rock to charge interest from the date of judgement, not only on the principal sum owing, but also on interest that it would have accrued over the entire life of the agreement.

 

The First National Bank case suggests that they do have to take account of the early settlement regulations and, as tomterm said, if the figure in the default notice is incorrect, then they can't proceed with this anyway. Of course there are a lot of other things that they need to have done properly as well. That is one of the reasons your defence has a lot of "I put the claimant to strict proof that..." as, unless they've done everything properly, then they don't have a case.

 

However, if they do (I'm not sure if they are allowed to do this) come back after having served you with a proper default notice etc then something to add into the defence would be reference to sections 129 and 136 requesting that the judge make a time order and amend the agreement so that no further interest is added to it. You'll need to speak to someone like tomterm or pt2537 about that though.

Regards

 

Nick

[out of cash]

hi womble,

 

no are doing my defence this week which is quite difficult as they have done something quite nasty to my agreement so i will be looking at something like damage limitations.

 

regards

 

out of cash

[womble72]

Evening Everybody,

 

I had a letter from Nr solicitors with a copy of the AQ form they have sent to county court.

 

The best bit in the AQ is there fees.

£6,700 for taking me to court.

 

That is great that the fact is they want £28,000 but also a crazy fee on top for costs.

 

Umm i assume that they are think there going to win this case ?

 

They have not take much notice of my defence then, oh well i am annoyed at the moment but we will see what will happen.

 

Outacash whats going on with your case at the moment, are they getting nasty !

 

Womble

[nicklea]

they have done something quite nasty to my agreement so i will be looking at something like damage limitations.

 

regards

 

out of cash

 

Care to share anything with the rest of us? You might get some more help with it

[womble72]

Hi Nick,

 

Sorry letting of steam.

 

I was hoping that i would not be going to court but the letter i recieved today has changed my outlook.

 

Everybody on here has been great and had brill help and advice but now i must deal with the Nr in the courts which to be honest i am dreading.

 

What upsets me is that the costs from the solicitors is £6,700 so far.

For what ? sending me a letter and filling out a AQ form.

Wow im in the wrong job, that has what as really got me fired up.

 

The cag team have given me a good defence so i will use it in court.

It just really isn't the news i wanted at this moment but i have to keep in there for my children and my wife.

 

Womble

[pt2537]

Womble,

 

Nothing has changed my friend

 

as previously suggested, give the court a call on friday .

 

at the end of the day, the court MUST have the AQ by 4pm if they dont then as discussed

 

Regards

paul

[womble72]

Thanks Paul

 

Will do.

 

Womble:)

[womble72]

Bad news.

Spoke to the court today and have told me Nr have filled in there AQ form.

 

The officer told me it will be in a couple of weeks time.

 

So now guys will i just take the defence from what Tom had provided me to court and hopefully i can understand all the legal jargon there going to throw at me.

 

Also can i defend the cost of the solicitor fees of £6,700 ?

 

Womble:mad:

[womble72]

Hi Cag team,

 

Where do i stand with the £6,700 extra costs from the solicitors Nr are using for going to court ?

 

Can they charge what they like for court costs.

 

Womble

[AndyOrch]

Alan

 

What was the initial costs on the summons? and where as this new figure come from bit more info if you can

 

 

Regards

Andy

[pt2537]

Hi Womble,

 

 

ok, firstly they would have to win to get the costs,

 

secondly, if they did win, the judge would look at their costs and consider what he feels fair to award so there is no guarantee's that the judge will go with their estimates

 

their fee does seem rather high to me, especially since most sol's fee is around 120-150 per hour, well it is around my area anyway

 

i hope this helps

 

 

regards

paul

[womble72]

Hi Paul,

 

The figure comes from there AQ form for overall costs so far.

 

That did make me really p**** off when i read that but just hope the judge will look at that and think there are taking the mickey.

 

Thanks Paul

 

Womble

[out of cash]

hi womble,

 

sorry for my late reply but at the mo NR .i have filed my defence and have just got back a&qs hopefully court date will be some time yet.

 

regards

 

out of cash

[mammyslad]

Hello Womble,

How did you get on, any result yet?

[womble72]

Hi,

 

No news yet.

 

I have been waiting quite a while now.Maybe because of the goverment running the show it may have disrupted procedures against me.

The new problem i am facing is a extra £300 a month of my mortgage payments.Fixed rate term finished and now i am struggling big time.

I cant afford not to give Payplan any money to the creditors because i will default on them but im in minus surplas at the moment so if Nr take me to court there not going to get much out of me.

So i see how i go but i am hoping that letter from court wont be coming just yet.

 

Kind Regards

 

Womble

[womble72]

Hi Cag Team,

 

I have recieved a letter today stating that 14th April is the day i must go to court and defend the indefensible.

The smart oppostion will be trying to force a charging order against me.

Is it possible for them to do this when it is a un secured loan.

I know with the information the cag team have given me since last year which has been excellent, i need to be reasurred that they cant do this.

I need strong arguement points against them.

I would be grateful of your guidence.

 

Kind Regards

 

Womble:confused:

[AndyOrch]

Hi trust you are well

 

Womble dont cause undue stress for your self. For them to attain a charging order firstly they have to achieve the CCJ which will be set if successful at an affordable level to yourself and only if you then default on the order can they then try to proceed for said charging order. Stick to your defence and argue the points raised in said defence.If needs be draft a skeleton argument list from your defence but remember why you are defending the claim the main points.Dont be steered away and stick to the facts why you are in the postion you find yourself today.

You will be fine just shout as the time nearers

 

Regards

Andy;)