Bryan Carter CCJ can anyone help??

[vikki75]

Well i'm lost with it all as was in hospital when the banks and the FSO were in court so really not sure what to do :confused:

[ScabHunter]

Don't worry. There are plenty of posters who can help you file your AQ, both with the basic questions and with the draft directions challenging Carter's non-compliance.

 

I just think it is time to start looking ahead to the time when you will need to file the defence, because this is not the typical case that we are all used to seeing.

 

The Particulars of Claim mention an agreement, so we can put them to strict proof that such an agreement exists. It presumably doesn't. If by "agreement" they simply mean the application form with terms and conditions for the account, they will have to prove that this money is owed, and that the charges were lawful. It presumably isn't, because they weren't.

 

I have just read through the link which JOgs has provided, and think there is definitely material in there which we can use.

 

Nicklea was a very useful poster - I have learned a lot from him. It is a shame he hasn't been seen on here since July. I see steven4064 was involved, he's still around. It might be worth giving him a shout to look over any defence we produce before it gets submitted.

 

We will work out a defence in time. There are some questions, though the first one being this - On the JOgs thread, there was a paragraph in the defence which stated that the charges were not bank overdraft charges, and therefore the OFT case was not relevant. How does this case fare? This was an account which had no overdraft facility, yet it was sent into the red by bogus charges. What is relevant in this case is that the charges, lawful or otherwise, should never have been applied because the money was removed from the account at the wrong time.

 

We don't really want to end up with this case being stayed for an eternity while the OFT case is decided, although even that won't be the end of the world if the result is right in the end.

 

I think there is probably a need here to launch an attack on the Nationwide through their complaints procedure, which could lead to the FOS becoming involved. If you've still got the paperwork to back up your case, you will be able to prove that the money was removed from the account without your authorisation.

 

SH

[vikki75]

Thansk for your reply. The paperwork that I sent to nationwide was lost in the house move along with alot of other things. I did contact them via their messaging service online but as they have closed the account I cannot get into that anymore.

[ScabHunter]

It is a shame you haven't got that paperwork any more. It makes it all the more important that we challenge their non-compliance with the CPR and get the paperwork you need.

 

I can't make many posts today as I've got an incrediby busy schedule, but I'll be back on this thread tomorrow. In the meantime, any input from anyone with specialist knowledge of bank charges and this type of case will be very much appreciated.

 

SH

[vikki75]

Thank you SH I will await your reply and thank you so much for all your help. I would be lost without this forum.

[ScabHunter]

The first step is to get the easy parts of the AQ filled in, then we can work on the more difficult parts.

 

I am assuming that the form you have received is the N150 form found here -

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

If it isn't, it will be similar, but some of the fields may be in different places.

 

A Settlement

 

As you need to show willing to the court, you will need to answer "Yes" to questions 1 and 2. Question number 3 must be answered "No", as there is a fee involved.

 

Question 4 can be left blank if you answered "yes" to question 1, so that is another good reason for doing so.

 

B Location of Trial

 

Obviously you need to have this go to your local court. Has it already been moved there?

 

If it has, you can answer "yes" and write "already transferred to my local court". If not, still answer "yes", and write "(local court), because the defendant is an individual."

 

C Pre Action Protocols

 

Answer "No", and write "Please see attached section C" in the box. Then, on a separate sheet of paper, type this, and head it section C -

 

"This case is not covered by any approved pre-action protocol. I have requested the claimant provide information in my CPR request, but to date the claimant has not provided the documents I require to investigate this claim"

 

D Case Management Information

 

What amount of the claim is in dispute - Enter the full amount on the claim form

 

Applications - No

 

Witnesses - Enter your own name, and "All" to 'witness to which facts'.

 

Experts - No to first question - leave the rest blank

 

Track - Small Claims Track - leave everything else blank as small claims track is normal for this size of claim

 

E Trial or Final Hearing

 

Time - 2 hours

 

(Dates need to be filled in by you personally - if there are any dates which are a problem for you, enter them here)

 

F - Proposed Directions

 

Yes to question 1, No to question 2.

 

We will need to attach directions to the claim form. These need careful thought so I will come back to them.

 

G - Costs

 

Leave blank

 

H - Fee

 

No (not payable by defendant)

 

I - Other Information

 

Yes to the first two questions, leave the "when did they receive them" box blank.

 

Applications - No

 

In the big space for other information, type "Please see attached section I"

 

This is something else we will need to give careful thought to, so leave it for now.

 

That covers the basics of the AQ form. Once you have filled it in, make two copies BEFORE you sign it. One copy is your own, and the other one will need sending to Carter.

 

You will also need copies of the Directions and the Other Information when we have written them.

 

When you have copied the AQ form, you can sign and date the original to get it ready to send to the court.

 

It is now a case of working on exactly what we need to put on the Directions and the Other Information.

 

SH

[vikki75]

Hi, the form is slightly different to that one. For the settlement part its just has yes or no as does the location of hearing, Track is yes or no, witnesses it asks for a number, experts yes or no,hearing space to enter dates, other information blank box,fee yes or no.

Hope that makes sense lol

[vikki75]

The other thing that I ment to add is that both me and my husband recieved claim forms for the 'debt'.

[vikki75]

Can I just fill in the form that is on that link or will it have to be the ones that we recieved? Dont have anyway of copying it to carter you see.

[ScabHunter]

You've got TWO claim forms for the same alleged debt?? Wow, you didn't mention that before (unless I missed it).

 

You will need to fill in the AQ form you have been sent. Was it labelled N149 instead of N150? Is it this one -

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

SH

[vikki75]

Yes that it the one. Sorry I didnt mention that we both got claim forms. I thought it was standard as it was a joint 'debt' Will that make any difference?

[vikki75]

Can i use that link to fill them out online? at least that way I can get a copy of them as that is the same ones we recieved.

 

Yes we both recieved claim forms on the same day one in my husbands and one in my name. I didn't mention this as i thought that with it being a joint debt that was the reason for us both getting one?

 

Will it make any difference?

[ScabHunter]

N149 is easier to fill in, although it is annoying that it has no field for directions. You will have to say everything which needs saying about Carter's non-compliance with the CPR as part of "Other Information".

 

Two claims doesn't make any difference to filling in the AQ. I'll be back in a few minutes.

 

SH

[vikki75]

Ok thank you. What if the court finds in his favour, will we have to pay twice??

[ScabHunter]

A Settlement

 

As the mediation service is free, the court will expect you to be willing to use it, so answer "Yes" to this one.

 

B Location of Hearing

 

If the form is to be returned to your local court, answer "No". If it isn't, then answer "Yes", and write "Defendant's home court, and defendant is an individual".

 

The form certainly should need to be sent to your home court - if not, something has gone wrong.

 

C Track

 

Answer Yes

 

D Witnesses

 

Fill in with a zero unless you will need to call on someone else to witness anything you are going to be claiming at the hearing.

 

E Experts

 

No to first question - leave everything else blank.

 

F Hearing

 

(Fill in any dates which would be difficult for you)

 

Interpreter - No

 

G Other Information

 

Write "Please see attached Section G".

 

(This is the part we need to work on, and produce a separate sheet for later)

 

H Fee

 

No (not payable by defendant)

 

If you go to your local library, you should find that they can make copies for you. Make the copies before you sign the original.

 

We can then start working on the Section G Letter.

 

SH

[vikki75]

That is great thank you I will get those filled out and await your reply on the section G part. Thank you again for taking the time to help us. We would really be lost without this site

 

Vikki

[ScabHunter]

Right, here is what I have managed to come up with.

 

Firstly, on the AQ form itself, section G, put the following -

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008

 

The date will be the date on which you intend to send a copy of the AQ to Carter. Then, on a separate piece of paper, print this -

In the ************* County Court

Claim number **********

 

 

 

 

 

Between

 

************* - Claimant

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement referred to in the Particulars of Claim, and any documents referred to within it which complies with the Consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
   
  
  
• Copies of all statements for the duration of the alleged agreement, used to establish a balance on the alleged account
   
  
  
• Copies of any other document to be relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

And, on another sheet of paper, print this -

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

N149 Allocation Questionnaire

 

 

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

1. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 31.14, for a copy of the agreement mentioned in the Particulars of Claim. Despite the fact that Civil Procedure Rules Part 31.15 insists that the claimant furnishes this document within seven days, my legitimate request was completely ignored.

 

2. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 18, inculding details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers, and copies of statements for the entire duration of the alleged agreement.

 

These documents are necessary to establish the balance on the said account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My legitimate request for this necessary information was ignored.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

Attach these two pieces of paper to the claim form, after you have made the necessary copies. Send the AQ to the court properly signed and dated, and an unsigned copy to Carter, also with the attached letters. Carter's copy need only be sent through the normal second class post.

 

It might be an idea to leave sending it for a day or two, to get some feedback on these letters. Although some of pt2537's original text remains, I have had to write most of it myself, and I am not a trained lawyer.

 

Any input is welcome.

 

SH

[vikki75]

Thats great thank you SH. I cant send until saturday as i dont get paid till then so hopefully that will give other members time to take a look

[ScabHunter]

This post is unrelated to the OP's case.

 

Somebody has actually asked me to help them with a defence, saying that it has to be in by next Friday. The problem is that they have asked me by using the reputation comments, and those leave no trace of who left the comment, so I am unable to reply.

 

If the person who left the rep comment on a post in this thread, asking me to help with a defence would care to PM me instead, I will be able to answer. The best thing to do is start a thread relating to the case, probably in the Legal Issues section if court papers have already been issued, and then PM me alerting me to the thread.

 

I will obviously help if I can.

 

SH

[ScabHunter]

Having read back through the thread I have come up with a couple of minor modifications to the AQ Information and Draft Order.

 

Can you just confirm that you have been in contact (written or telephone) with NW during the time you were banking with them, and that the communications related to charges being added unlawfully because a) the charges were disproportionate and in violation of the Unfair Terms in Consumer Contracts Regulations 1999, and b) the charges were even against the NW's own Terms and Conditions, because they had resulted from direct debit money being withdrawn prematurely?

 

If this is true, I can see why they would not want to disclose the letters and transcripts which we should be forcing them to disclose.

I also feel there is a definite need to launch a counterattack as well as a defence in this case. This counterattack should be launched in the form of a complaint to the Nationsnide themselves, with a view to escalating it to the Financial Ombudsman Service if they cannot satisfy it.

 

There have clearly been irregularities here. The fact that this case has already gone to court, been awarded in your favour, and then they have continued to do exactly the same thing, must work in your favour.

 

If the Financial Ombudsman Service does investigate the complaint, it will involve NW in an expense of £450, which is in itself greater than the amount being claimed with these vexatious court claims. In a case such as this, where there has clearly been much wrongdoing, the FOS may well award compensation.

 

Having such a complaint hanging over their heads, alongside an allocation questionnaire with directions which makes it quite clear that you have a justification for defending the entire claim, may just make them see some kind of sense and want to enter in to negotiation.

 

Alternatively, they could end up losing two court claims issued for the same alleged debt made up of unlawful charges, have to pay out two wasted costs orders, and then get hit with a penalty from the Ombudsman as well.

 

The more you can build up the risk factor against them, the more likely they are to discontinue and avoid the risk.

 

SH

[vikki75]

Hi SH in answer to your question, yes I have been in both written and verbal contact with the NW about these charges and was just told that they were lawful, I do not have the letters though as these were lost in the house move. They were sent letters telling them not to take money out of the benefits as that was to pay the rent but they still did, claiming they had the right to!. I wouldn't know what to put in a letter to the NW or FSO so any help down that road would be great.

 

I also had a single account with NW that was closed with the joint account I have not had any statments from NW regarding that account since last year!.

 

As pointed out in my previous posts the charges that make up this debt were challanged to NW and we had the court documents ready to go but as a result of me being ill they were never completed.

 

The main think that annoyed me is that they knew the only money going in was benefits and yet still took the charges out because DD were going out early or had not been cancelled when told to do so.

[eviltwin_sco]

hi i'm sure there is laws regrding benefits so i did a google jsa benefits debt bank account

 

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/111908-jsa-payments-taken-out.html

 

rory32

An example of a right of appropriation letter to your bank is shown below:

 

 

Dear Sir/Madam,

 

Bank Charges and Benefits and the First Right of Appropriation

 

ACCOUNT NUMBER: xxxxxxxxx

 

I am writing to you following several charges debited from my account totalling £xxxx on (date).

 

Bank charges are unlawful penalties for breach of contract. However, the bank or building society is only allowed to charge you what it costs to cover their administrative charges. If they charge you more than this, you may have a legal right to get back the difference.

Notably, and in my instance, if the income in an account comes from benefits, they are also contrary to the legislation relating to benefits. If the income is from incapacity benefit, job seekers allowance, etc , they are contrary to section 187 of the Social Security Administration Act 1992. The working of this Act comes under the Treasury and the Department of Work and Pensions, respectively and are quoted below for your immediate attention.

 

Social Security Administration Act 1992

Miscellaneous

Certain benefit to be inalienable **

 

187- Subject to the provisions of this Act, every assignment of, or charge on-

(a)benefit as defined in section 122 of the Contributions and Benefits Act;

(b)any income-related benefit; or

©child benefit,

and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of the beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors

 

When you open an account with a bank or building society and use their services, you are entering into a contract. The law says that the bank or building society must carry out its business:-

• with reasonable care and skill.

 

If the service is unsatisfactory you may be entitled to compensation if the contract has been broken. I believe that there has been a breach of contract as I feel your organisation has failed to handle my affairs with reasonable care and skill.

 

This failure on your behalf has caused me a great deal of hardship. I am left with no means to pay the rent/bills due to the unauthorised amount now outstanding. The incoming amounts due to be deposited into my account next week will only clear the amount outstanding leaving little if any to pay the rent, for housekeeping or utility bills such as gas.

I ask for a little compassion and request that the benefit amounts totalling £xxxx, debited in order to pay for your default charges, be refunded by return.

 

I am also writing to inform you that I am due to have the following payments made into my account:-

• Tax Credit payment of £xxx on xx/xx/xx
  
• Child Benefit payment of £xxx on x/xx/xx
  
• Incapacity Benefit payment of £xxx on x/xx/xx
  

Totalling £xxxx,

 

I wish to use my first right of appropriation for this money, for the following purposes;

Rent £xx

Utilities bills £xx

Housekeeping money £xx

I will withdraw the money on the day that it is deposited for the above use, and I would be grateful if you would ensure that any other payments out of my account do not interfere with this withdrawal.

 

Yours faithfully,

[ScabHunter]

Thanks for the information eviltwin_sco. That gives me another act I can research which will possibly help here.

 

It is obvious you need to make it clear in the draft order that you are demanding copies of all communication relating to this account. There should plenty in there they will not want to reveal.

 

Can I just ask out of interest if they ever applied excessive charges to the personal account?

 

SH

[vikki75]

Hi that is the letter that I sent them and they ignored it. Yes i did have charges applied to that account and they were refunded into our joint account when we cliamed them back via the courts, not sure if there is anything else on there though.

[eviltwin_sco]

Having read back through the thread I have come up with a couple of minor modifications to the AQ Information and Draft Order.

 

Can you just confirm that you have been in contact (written or telephone) with NW during the time you were banking with them, and that the communications related to charges being added unlawfully because a) the charges were disproportionate and in violation of the Unfair Terms in Consumer Contracts Regulations 1999, and b) the charges were even against the NW's own Terms and Conditions, because they had resulted from direct debit money being withdrawn prematurely?

 

If this is true, I can see why they would not want to disclose the letters and transcripts which we should be forcing them to disclose.

I also feel there is a definite need to launch a counterattack as well as a defence in this case. This counterattack should be launched in the form of a complaint to the Nationsnide themselves, with a view to escalating it to the Financial Ombudsman Service if they cannot satisfy it.

 

There have clearly been irregularities here. The fact that this case has already gone to court, been awarded in your favour, and then they have continued to do exactly the same thing, must work in your favour.

 

If the Financial Ombudsman Service does investigate the complaint, it will involve NW in an expense of £450, which is in itself greater than the amount being claimed with these vexatious court claims. In a case such as this, where there has clearly been much wrongdoing, the FOS may well award compensation.

 

Having such a complaint hanging over their heads, alongside an allocation questionnaire with directions which makes it quite clear that you have a justification for defending the entire claim, may just make them see some kind of sense and want to enter in to negotiation.

 

Alternatively, they could end up losing two court claims issued for the same alleged debt made up of unlawful charges, have to pay out two wasted costs orders, and then get hit with a penalty from the Ombudsman as well.

 

The more you can build up the risk factor against them, the more likely they are to discontinue and avoid the risk.

 

SH

ditto ditto ditto

 

apologis but i feel i need to reqoute thiss

If this is true, I can see why they would not want to disclose the letters and transcripts which we should be forcing them to disclose. SH

 

can you not claim costs and compensation

 

i have read some case on here and the dca's tactics omg

 

but this case is the most ludicrous award for me

do we have an award system so i can place my vote