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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Hello - Help Wanted - In Court Tuesday!!


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Hi

Hope there is somebody out there that can help me.

 

I am in court on Tuesday - Allocation Questionnaire being dispensed with - and have just received a telephone call from the solicitors dealing stating that they are asking that a stay is not granted.

 

I asked that a stay be granted on the grounds that bank charges were illiegally taken from my account when I was in receipt of benefits. He said that this was a misconception.

:o

He also stated that he would be instructing a barrister and that I would have to bear the costs of this!!!

 

Help:confused:

 

Kes

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Firstly. welcome :-)

 

Secondly, have you only just found out about this?

 

Thirdly, what bank is it?

 

cheers

 

oh, we need amounts too and what you have done so far before you got here

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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Well, first off, can you give some brief description of the claim, i.e. are you claimant or defendant, is it a bank charges claim, what were the POC and defence?

i will be off site for the next month or so. if you have any problems, feel free to report the post so a moderator can help you.

 

I am not a qualified or practicing lawyer.

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Hi

 

Yes I have registered before but find this whole process tortuous and had difficulty trying to get anything posted onto this forum for some reason. It has taken me 2 1/2 hours to post this today for some reason.

 

The bank is Barclays and the amount is £3,382.12 and that I am the Claimant. Their defence was :

 

1.The POC do not provide full details of particulars of the account in question and/or the precise charges alleged to have been unlawful, or the date thereof. To the extent it is alleged that the Claimant incurred bank charges on the Claimant's account for unauthoried borrowings (whegther unpaid fees for returrned cheques, "Paid Referral Fees" or any other such fees), the Defendant put the Claimant to strict proof of each charge and the date thereof.

2. The POC are summary in nature. Accordingly, this defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

3. The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions. The Claimant accepted the same when the account was opened including (in particular but without limitation) the following terms and conditions (which are summarised):

a. The Defendant's right to charge a "Paid Referral Fee" where the Defendant pays an amolunt (either by compulsion or election) which causes the account to become overdrawn - £30 per item (Previously £25).

b. The Defendant's right to chage an adminstrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient clered funds in the account - £35 per item (Preiously £30).

c. The Defendant's entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

4. The Defendant's standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds the authorised overdraft limit).

5. If and to the extent it is the Claimant's case tht the failure to make necessarfy payments and/or failure to remain within authorised overdraft limits and/or failure to arrange an authorised overdraft constituted a breach of the terms of applying to the account and that the contractual entitledment to debit charges from the Claimant's account constitutes a liquidated damages clause, the same is denied. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of the account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft.

6. Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alterbatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999.

7. Therefore, it is denied that the charges were unlawfully debited from teh account.

8. If and to the extent the Claimant incured charges on the account, this was caused by teh Claimant having gone into overdraft without having agreed with the Defendant an authorised overdraft facility or to increase the overdraft facility and/or the failure to make payments to bring the balance of the account back into credit.

9. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same.

10. The Defendant denies that it is liable to the Claimant for the sums claimed and the interest as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceablke and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 11th July 2001 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action.

11. In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and inggerest or any part thereof are unlawful were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a consequence of such breach of contract inb allowing to go into unauthorised overdraft. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary wuch loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.

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Right, when did you file at court and how did you file, did you fill in the N1 and take it to court or did you do it on line with MCOL?

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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right ok, can you post what was on your POC's and what correspondence have you had from the court and from the solicitors

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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My Particulars of Claim were:

Between 2nd February 2000 and 26th October 2006 the Defendant applied a nujmber of default charges to the Claimant's current account. These charges are unlawful because they do not reflect the true cost of going into an unauthorised overdraft. Furthermore they are a breach of the Unfair Terms in Consumer Contracts Regulations 1999 which state: A term is unfair if it requires any consumer who fails his obligation to pay a disproportionately high sum in compensation.

A charge is deemed to be penalty if, in reference to the case of Wilson v. Love in 1896, it does not reflect the true cost of an item. The Claimant further claims interest purusant to S69 of the County Courts Act 1984 at the rate of 8% per annum, being the sum of £268.97 and ongoing until Judgement. The Claimant further claims the court fee of £120. The Claimant asks the court to enter Judgement in their favour for the sum of £3,362.12 plus interest plus the above court fee.:(

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Hi the other communication I've had from the court is that the AQ is dispensed with and a Notice of Hearing dated 19.12.07.

 

The first communication I've had from from the solicitors acting for Barclays was this afternoon stating the above!!

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Sorry

 

As to your question as to whether I have only just found out about this, no I have known for some time, part ostrich syndrome and part hoping that the test case would solve all my problems for me and part idiot comes into play!:rolleyes: :o

 

K

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Hi

Hope there is somebody out there that can help me.

 

I am in court on Tuesday - Allocation Questionnaire being dispensed with - and have just received a telephone call from the solicitors dealing stating that they are asking that a stay is not granted.

 

I asked that a stay be granted on the grounds that bank charges were illiegally taken from my account when I was in receipt of benefits. He said that this was a misconception.

:o

He also stated that he would be instructing a barrister and that I would have to bear the costs of this!!!

 

Help:confused:

 

Kes

YOU asked for a stay be granted and the banks are refusing it? Are you SURE? :-?

 

As for the barrister costs, no, you won't have to bear the costs, only if you were to lose AND if the judge deemed your case vexatious.

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Oh dear,

 

No bundle from the solicitors, but the notice of hearing actually says that a hearing to consider a stay will take place on ...

 

I should really read what is sent to me shouldn't I!!!:o

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I asked for a stay NOT to be granted as during the six year period I was actually in receipt of benefits - I was advised to do this on another forum. So is this wrong, should I wait to see what happens with the Judgment on the test case !!! I think I may have gone off half cocked on this case and not got my head around all the legal terms and things.

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Right, ok, now we're getting somewhere.

 

So, now you're going to have to court to explain why the stay should not be granted. For this, you need something to submit, so first you need to read this and try to understand it:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/115023-application-removal-stay-grounds.html

 

Then this:

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/114505-bundle-stay-hearing.html

 

If you had any plans for the weekend, cancel, you need to get busy. ;-)

 

In all fairness, I'd better warn you that that stay is very likely to get granted, but IF the other side want to try and get their costs awarded to them, then you need to show the judge that you didn't fight the stay just to be obstructive, but because you thought you had a real shot at getting justice.

 

You have put yourself in a precarious position, and yes, you have spotted it yourself, it's because you didn't use the time to learn. I truly hope the lesson is learned for the future.

 

Good luck, and post back if you need help or to let us know how you're getting on. :-)

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Hi KES,

 

I've discussed this with Bookworm. It's really almost certain that your case will be Stayed whether you object or not.

 

Judges have orders to stay all claims re current a/c chgs; you've left it very late to put together a case to oppose a Stay; the only grounds likely to succeed would be severe financial hardship caused by the charges alone; the OFT test case is being considered and judges will not want to let your case run until the outcome is known.

 

Best thing I think for you to do is take along to court 2 copies of our new POC's - http://www.consumeractiongroup.co.uk/forum/bank-templates-library/107566-bank-charge-poc-n1.html - 1 copy for the court and 1 for Barclays Rep. Read through, adapt if nec'y and print out.

 

The reason is that you started your claim on MCOL and the POC you used will fail in court. Read this to understand better - http://www.consumeractiongroup.co.uk/forum/lloyds-bank/47344-claim-too-vague-defence.html

 

The judge may require that you do this by formal application using Form N244 and pay the required fee (not reclaimable).

 

Come back with any queries when you've been through the links I've posted.

 

Slick

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Hi Bookworm and Slick 132

 

Thank you for your help.

I do feel that I have been a little misguided in requesting that this stay be lifted.

During the period that I am claiming for I was in receipt of benefits, working tax credit and family benefit. That has now changed as my children are grown up and I now work full time, so in essence I can't show just cause for having the stay lifted!! Although during this period my husband was made redundant - he did find a job after three months, so extra pressure on me, and then at the end of 2002 he suffered a heart attack which meant that he was off of work for a period of six months, again extra pressure, but all of this was logged and explained to Barclays by telephone everytime any crisis happened asking for their help and extending loans to cover.

I wrote to Barclays two weeks ago asking if they wanted a trial bundle and they said today on the phone that a trial bundle would not be required.

Will just have to see what CCC say on Tuesday.:eek:

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KES,

 

The content of your last post confirms, for me at least, that you have no chance of the case NOT being Stayed.

 

Take the opportunity to ask the court to accept the new POC as stated above.

 

This will put your claim in a far stronger position than at present.

 

Read and use the links posted.

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We could do with some help from you

                                                                PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

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