Bank of Scotland. Judgment by default. Have I won?

[dave26]

I issued court proceedings against this Bank after they took me for a

total of £105 after slightly overdrawing. The court issued my claim on

the 9th January, my claim was based on that they were penalty charges

and not legally enforcible. They were given 14 days to respond. After

failing to respond I was allowed to go to the next level and ask for a

judgement by default and it was granted. The courts today are sending

them a demand of £135 to be paid to me immediatly.

This all seems too easy, apparently it is possible under certain

circumstances for them to overturn the judgement by default, but I

cannot see any grounds. Anybody have any thoughts?

[BankFodder]

Just to confirm what I posted to you on BCH - if Scottish procedure follows E/W procedure which I expect it does for these purposes. then the presumptive approach is that a defendant must have an opportunity to have the cases tested on its merits. This means that if a defendant is prepared to say to the court that he did not receive the summons or for some other reasonable grounds was unable to meet the deadline in time AND he is prepared to say that he believes that he has a defence which needs to be heard, then the court will set aside the judgment and allow the defence to be entered and the case to be heard.

With personal defendants it might be that the person was on hoilday, ill etc. With a bank it would be much tougher but Stephen's case against the Abbey National went broadly along these lines.

I expectthat you will get further responses to this thread which you have started but you could also phone the court in Scotland and also get their information publications which I am sure will help you.

I'd be very interested to know the answer for certain because this seems to be a growing technique in banking litigation.

I expect that it is very cunning - but I'm not sure how.

[BankFodder]

There is your answer - and it looks easier for them than in England and Wales. On the other hand they have a pretty strict 14 days, it seems, whereas in E/W I have known cases to be re-eopend 2 or 3 months later.

 

Recall of decree

22.1. (1) A party may apply for recall of a decree granted under rule 8.1(3), rule

9.1(6), (7) or (8 ) or rule 11.1(8 ) by lodging with the sheriff clerk a minute in

Form 20, explaining the party's failure to appear and in the case of-

(a) a defender; or

(b) where decree has been granted in respect of a counterclaim, a

pursuer,

stating, where he has not already done so-

(i) his proposed defence, in the case of a defender; or

(ii) his proposed answer, in the case of a pursuer responding to a

counterclaim.

(2) A party may apply for recall of a decree in the same claim on one

occasion only.

(3) Except in relation to an application to which paragraph (4) applies, a

minute by a pursuer under paragraph (1) must be lodged within 14 days of

the grant of the decree.

(4) A minute lodged by-

(a) a pursuer in respect of a decree granted in terms of a

counterclaim; or

(b) a defender,

shall be lodged-

(i) if the claim has been served outwith the United Kingdom under

rule 6.5, within a reasonable time after he had knowledge of the

decree against him or in any event before the expiry of one year from

the date of that decree; or

(ii) in any other case, within 14 days of the execution of a charge or

execution of arrestment, whichever first occurs, following on the grant

of decree.

(5) On the lodging of a minute for recall of a decree, the sheriff clerk must

fix a date, time and place for a hearing of the minute.

(6) If a hearing has been fixed under paragraph (5), the party seeking

recall must serve upon the other party not less than seven days before the

date fixed for the hearing-

(a) a copy of the minute in Form 20a; and

(b) a note of the date, time and place of the hearing.

(7) If the party seeking recall-

(a) is not a partnership or body corporate;

(b) is not acting in a representative capacity; and

© is not represented by a solicitor,

the sheriff clerk must assist that party to complete and lodge the minute for

recall and must arrange service of it(

i) by first class recorded delivery post; or

(ii) on payment of the fee prescribed by the Scottish Ministers by

order, by sheriff officer.

(8 ) At a hearing fixed under paragraph (5), the sheriff shall recall the

decree so far as not implemented and the hearing shall then proceed as the

Hearing held in terms of rule 9.1(2).

(9) A minute for recall of a decree, when lodged and served in terms of

this rule, shall have the effect of preventing any further action being taken by

the other party to enforce the decree.

(10) On receipt of the copy minute for recall of a decree, any party in

possession of an extract decree must return it forthwith to the sheriff clerk.

(11) If it appears to the sheriff that there has been any failure or irregularity

in service of the minute for recall of a decree, he may order re-service of the

minute on such conditions as he thinks fit.

 

Source and full text:- http://www.scotcourts.gov.uk/sheriff/small_claims/forms/sederunt_small_claims_2002.pdf

 

-

[Guest stephen]

Abbey applied to have mine judgment in default set aside because i went public.

 

if you like i can contact my media connections and there probably be intrested in running the story,

 

or your find the bank just pays you!

[Robertxc]

This is something I am quite familiar with, as I tend to do all my litigation in Scotland. The Recall of Decree, as has been correctly stated above, allows the losing side to have the case brought back to court if for some reason they were not aware that the case was happening or the decree had been issued. Theoretically, they are supposed to give a good explanation as to why they didn't attend, but I have been told by a Sheriff directly that in practice they always grant the recall. However, if they try to have the decree recalled more than 14 days after THEY HAVE BEEN NOTIFIED that they have lost by default, then it becomes much more difficult. The reason for the capitals is, of course, that it is for you to notify them that you have won by default, and you can't just sit on your decree for fourteen days without telling them.

 

I think there is no chance of them defending such a small amount, but watch out for retaliation.

 

Is it worth having a section on this website dedicated to retaliation by pi**ed off banks?

[BankFodder]

I heard from Dave26 offline about this and he commented that the bank had claimed that he was subject to Scottish jurisdiction even though he was based in Bristol. This was a very strange for the bank to say.

I have replied to Dave26 and asked him to post it on the forum but he hasn't so far.

 

Dave26 - if you see this, it would be very useful if you would give more info. Is this another try-on by a bank?

[Guest stephen]

another bank trying it on, nare that can not be true, banks are so honest,

 

Well at least that what they say to the press

[Guest stephen]

was he in england when he joined the bank.

[dave26]

Deleted text. Duplicated posting. Sorry

[dave26]

Regarding my claim. I actually opened the account through a halifax branch in Bristol. I have taken action against the Bank of Scotland due to an act on their behalf which bordered in my opinion as theft. What actually happened was on a day in question I overdrew my account by £6. I had two outgoing debits, both dishounered, either one could have been paid and I was charged £70, £35 for each debit. I complained by letter, and had a responce in writing that they had to charge for each debit because they could not distinguish between the 2 and had to return both, charging £35 for each. A second letter was sent basically telling them their responce was astonishing and obviously the thing to do was to pay the first and not pay the second. Their responce again in writing and i quote "Scots law governs the agreement between the bank and you, under scots law, where there are two or more requests for payment made together at a time when the balance of the account is such that one might be paid, the bank cannot select which ones to pay and as a result, all items must be returned unpaid."

Also in a future letter I asked them for a breakdown in cost to justify these charges or I would take legal action on the basis of these being penalty charges, again I have in writing a refusal to give me such information, and refered to the terms and conditions which I signed and the banks charging structure is part of this agreement.

The default notice was issued against them on the 2nd feb, will give them two weeks then send in the baliffs.

[BankFodder]

Amazing!!!

I wish that there was a smiley to show that I have fallen over partly with astonishment and partly with laughter. What clots!

 

It is clear that Scots law does not apply - alhtough couod yo have alook at the contract to see whether they have included a term to the effect that the choice of law is Scottish. That would be very interesting to see.

 

Which Branch will the bailliffs be going to.

We could easliy organise a welcoming committee for them with a lettle help from our media friends.

[Robertxc]

I could be wrong, but surely this is not a matter of Scots law or English law, but more a matter of UK consumer law. As I understand ithe normal rules are that you have to sue in the court nearest the defender, you are a consumer, and the other side is a company, in which case you can sue them in the court nearest you.

[BankFodder]

You are referring to the question of locality after the jurisdiction has been decided.

 

The question of jurisdiction in a cntract case such as this will generally be a question of where the contract was made. If it was made in England and Wales then issues which arise fall to be decided by the courts of England and Wales - then you find out which locality.

 

If Dave26 went into a bank in England and opened an account there then it will be a contract which is governed by English Law and justiciable before the English/Welsh courts.

 

It is a good thing too. How would you like to go and buy a sandwhich from Pret a Manger and then have to go to France to complain?

[Robertxc]

Yes, you're absolutely right. A few years ago I was sued by a big company, and when I complained that the case should be heard at my local sheriff court, they successfully argued that because it was a contract governed by English law, it had to be heard in England.

 

However, what I was able to do was get the case moved to Berwick County Court (from Skipton), which is the nearest English court to Scotland, which presumably made it too much hassle to pursue, since they dropped the matter soon after.

[dave26]

I have kept all my documents together and cannot find any terms and conditions. I think when the account was opened they never left me a copy. Cannot tell you if there is any mention of Scottish law applies.

 

GOOD NEWS

 

My account today has been credited with the full amount demanded by the courts, £105 plus £30 court costs. Sorry no baliffs this time.

If only they had taken notice of my letters they would have avoided the court costs. If they dont want to fight it, why let it go as far as legal action. They have lost out.

I cant wait till friday, I am going into my local Halifax with all the Bank of Scotland cheque books etc, and tell them exactly where to stick this Bank.

Already transfered this money to my new Bank.

[BankFodder]

Don't close the account.

UK accounts are hard to get. It could come in useful in the future. And they don't really care - you are just a troublesome customer.

Don't close it. It is more a slap in the face to keep it and use it. All the banks are the same. At least this one knows that you have to be treated with caution.

 

Well done on your success.

[dave26]

In all honesty, the Bank of Scotland is a business account, every time I use it I get charged a small amount for each debit or credit. I will not let them benefit from my money any more, so I must close the account. More importantly I still have my personnel accounts with the Halifax (same company). I will make them aware of why I have switched accounts. Hopefully as you say, they will treat me with caution.

[dave26]

Have received this letter from the bank. Totally annoyed at the arrogance. Change of plan will keep account open, with a small deposit and just leave it.

 

"I have received and will be dealing with the proceedings which you

have issued against the Bank of Scotland in the Northampton County

Court.

 

Your claim related to bank charges debited to your business account.

The charges were debited to your account in accordance with the

account terms and conditions, which you agreed to accept, and by

which you are bound. The charges arose as a result of Bank of

Scotland being unable to honour payment instructions issued by you

because there were insufficient funds in your account.

 

Unfortunately we were only recently made aware of your claim. If we

had been made aware of your claim earlier we would have indicated to

the court that Bank of Scotland intended to defend your claim. We

currently have the option of applying to the court for an order that

the judgement be set aside. However on a purely commercial basis, it

will cost the Bank of Scotland money to do this in terms of the legal

costs that will be incurred and it is unlikely that Bank of Scotland

will be able to recover these costs.

For this reason , but without admission of liability, Bank of

Scotland is prepared to settle your claim without further action for

the full sum claimed of £135. I have arranged for this amount to be

refunded to your account.

In future, please conduct your account in accordance with the account

Terms and Conditions so as to avoid incurring charges. Please note

that , if you incur any further charges on your account and then seek

reimbursement of the charges, Bank of Scotland reserves the right to

close your account."

[janjul1]

Hi all this is my first post and hate to throw a spanner in the works but I'm at a loss as to what to do now. I have claimed back a couple of thousand from the banks so far but the RBS has me a at a loss. I follwed exact procedure as with other banks and ended up filing at court which I have done with Halifax and Mint and they just paid up. RBS failed to respond and therefore I applied for a judgement by default which I won. Still no contact from RBS. I then applied for warrant of execution but this morning got a letter from the Northampton saying they could not proceed until I confirmed if defendent was .....then a list of about 7 things including being a limited company which would prevent court from being able to issue a warrant. Still no contact from RBS so where do I go from here. The charges, interest, court costs etc now come to just over £500 so I don't want to let it go without a fight!

Any help would be gratefully received.

Regards

Jan

[pkelly]

Hi Folks

 

Its time everyone got together to support other in beating these Bandits

have a look at this and show your support for him. this is just a start

 

YouTube

 

http://www.youtube.com/watch?v=EVUNDhtpMJY

[dave26]

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