Natwest taking me to court ***All 3 Claims Discontinued***

[texanbar]

If parties have joint liability, then they are each liable up to the full amount of the relevant obligation. So if a husband and wife take a loan from a bank, the loan agreement will normally provide that they are to be "jointly liable" for the full amount. If one party dies, disappears or is declared bankrupt, the other remains fully liable. Accordingly, the bank must sue all living co-promisors, for the full amount. However, in suing, the creditor has only one course of action, i.e., the creditor can sue for each debt only once. If, for example, there are three partners, and the creditor sues all of them for the outstanding loan amount and one of them pays the liability, the creditor cannot recover further amounts from the partners who did not contribute to the liability.

 

Tex have you a copy of the application and agreement with both your signatures clearly shown?

Hi Andy, NW sent us a printed copy of the application form, however, there is no signature anywhere on the form (either mine or Mr Tex's)

 

However, NW are actually pursuing this third claim against Mr Tex for the overdraft/current account - not the personal loan.

 

In the initial claim (addressed to me) they were attempting to recover all monies; ie overdraft/current a/c + personal loan, which was then subsequently discontinued. IM then did a second claim (for the personal loan only and still addressed just to me) which was struck out due to it being part of the first claim. Now they are doing a third claim (for the overdraft/current a/c) which is still part of the initial claim but this time they have named the defendant as Mr Tex.

 

Can you please advise if the joint and several defence of Mr Tex being part of the 'joint and several' negates him from liability as the initial case was discontinued as I am part of the 'joint and several'

 

Does this joint and several not go both ways? ie all liable then all not liable due to the NoD. Hope this makes sense!

 

Gez -

Any mention of the individual account numbers at any time during case? Sorry, I know I'm being a pain in the butt, lol......... I'm sure you can see where this is going with a NW/RBS split claim and additional points to rebuttal WS

 

In reference to your question re: a/c numbers, I can definitely confirmed NW/IM had to submit an amended POC which itemised the a/c numbers and monetary values. I then had to resubmit an amended defence accordingly. Hope this helps

 

x:)x

Edited December 3, 2011 by citizenB
completed the quote box :)

[texanbar]

By agreement(s) entered into between the

'

 

Claimant and Defendant, the Defendant has

failed to pay the sum of xxxxxxx.

The Claimant has requested payment but the

Defendant has failed to pay the full sum

demanded. The Claimant claims the sum of

xxxxx and interest under $.69 of the

 

County Courts Act 1984 at a rate of 8% per

annum from

 

 

02/0112009 until judgment or

 

sooner payment

 

Costs. The claim does not

 

include issues under the Huu

'ian Rights Act 1998.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

.

 

Thxs Andy

x:)x

[citizenB]

Do they not have to be specific with the account number/account type they are claiming on? That claim above is pretty basic and doesnt show anything at all ?

[texanbar]

ooh also, on the WS I have scanned in, point 9 reads:

 

The a/c which is the subject matter of the proceedings is a joint current account (sort codexxx a/c numberxxx) held by the Defendant and Mrs Tex which was opened on xx xx 1994. Due to the age of the a/c the Bank no longer has copies of the a/c opening forms.

 

I also believe IM/NW are solely basing this case on the fact that the NoD was against the said defendant (ie me) and not defendant(s) ie me and Mr Tex.

 

x:)x

[AndyOrch]

In reference to your question re: a/c numbers, I can definitely confirmed NW/IM had to submit an amended POC which itemised the a/c numbers and monetary values. I then had to resubmit an amended defence accordingly. Hope this helps

 

Have you the amended P.o.C to hand Tex?

[gezwee]

Hi Tex

 

In my mind you can add the split claim aspect to the rebuttal. Assume hubbys defence was slightly acock with reference to the loan rather than the joint o/d

, not a problem to fix within w/s.......... if they can get away with a 2 year slip in dates then I'm sure you can adjust w/s to suit ;-)

 

Think my broadband connections giving me grief today and keeps throwing me off the site so if I don't appear to be responding you'll know why.

 

Gez

[texanbar]

Hey Citizen

 

They did then send me an amended POC which had the a/c numbers on, to which I then submitted an amended defence.

x:)x

[texanbar]

hi Andy,

 

Let me scan the amended POC ...

x:)x

[AndyOrch]

I think if you could post all the P.o.Cs for every claim would be invaluable and provide the key.

 

Andy

[texanbar]

Here is the Amended POC

 

 

 

Northampton County Court

f

BETWEEN:

National Westminster Bank PIc

AND

Claimant

Defendant

Amended Particulars of Claim pursuant to Court order dated 8th June 2009

1. Amendments have not been shown to the original claim as this was issued electronically

through the Northampton County Court Bulk Centre.

2. The Claimant's claim is for the sum of £12-..,hich arises out of the balances

outstanding on two accounts which the Defendant holds with the Claimant and one credit

balance for an account which the Defendant holds with the Claimant has been taken into

account.

3. The first account, number relates to a loan taken out on or around the 1 SI December

2005. The loan agreement (hereafter Agreement) is regulated by the Consumer Credit Act

1974. Under the terms of the Agreement the Claimant loaned the Defendant the sum of

£7,500, the charge for credit was £1,743.60 and the total amount due under the Agreement

was £9,243.60. This was to be repaid in 60 monthly instalments of£154.06.

4. The Defendant has paid £1,386.54 towards the loan agreement and the balance claimed in

respect of this account is £7,857.06.

5. As at the 6th February 2009, were the full sum to be paid under the Agreement, a rebate of

£1,029.96 would apply in respect of an early settlement.

6. A "True copy" of the Agreement is attached to the Amended Particulars of Claim at Appendix

A.

The second account, relates to an outstanding overdrawn balance on an Advantage Gold

Cur~ent account, number_which the Defendant opened the 31 st October 1994. The

balance claimed on this account when proceedings were commenced was £4399.14.

8. The Claimant has taken into a credit of £0.02 in respect of account number_

9. Default Notices were issued on the 9th November 2005 and a copy of the screen prints in this

regard are attached to the Amended Particulars of Claim at Appendix A.

10. The sums owed on the current account and Agreement have not been paid and remain

outstanding to the Claimant.

11. The Claimant therefore claims the sum of £12,256.22 and costs from the Defendant.

12. The Claimant claims interest at the court rate of 8% pursuant to the Section 69 of the County

Court Act 1984 on the balance claimed, from the date of issue until judgment or sooner

payment.

And the Claimant claims:

1. The sum of £12,256.22

2. Interest

3. Costs

Dated this f~ of June 2009

STATEMENT OF TRUTH

The Claimant believes the facts stated in this Amended Particulars of Claim are true

I am authorized by the Claimant to sign this Amended Particulars of Claim.

Signed ..

PrintN

Filed by Irwin Mitchell LLP

[texanbar]

Dear Andy,

 

Please find attached the scanned POC for claim 2 and 3. A2 is the second claim (which was against me and subsequently struck out), A3 is Mr Tex's claim for o/d.

 

Also, just realised on the loan application print-out, it clearly states mine and Mr Tex's name (although no signatures).

 

x:)x

pocnumbers2and3.pdf

[AndyOrch]

Thank you Tex.

 

Have you a copy of OH defence to this latest claim just to refresh.

 

Regards

 

Andy

[texanbar]

Your welcome - yep, here it is

Thxs Andy

 

Claim Number

 

BETWEEN

 

 

National Westminster Bank PLC

Claimant

 

And

MR TEX

Defendant

 

 

………………………………………………..

 

DEFENCE

………………………………………………..

 

 

 

I am the Defendant in this action and make the following statement as my defence to the claim made by National Westminster Bank.

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

No particulars are offered in relation to the nature of the written agreement referred to, the method used by the Claimant to calculate any outstanding sums due, or any other matters necessary to substantiate the Claimant's claim.

A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.

 

It is averred that the Claimant has no right of action until such time as the default is remedied and the Claimant supplies the documents referred to above.

 

Further to this case, in an attempt to ascertain what grounds the claimant has [despite bringing two previous claims (Claim numbers: XXXXX and XXXXX) against my wife, Mrs Tex which have been discontinued and struck out respectively], in bringing this action to allow the Defendant to prepare a defence against the original claim XXXXX, the Defendant wrote to the Claimant’s solicitors on 7th January 2009 requested the disclosure of information from the Claimant pursuant to the Civil procedure rules CPR 31.14 allowing seven days to comply.

 

Further to the above on the 3rd February 2009, a letter was received from the Claimants Solicitors requesting an extension of 7 days to supply information.

 

The information requested amounted to copies of

 

(1) the Agreement referred to in the Particulars of Claim

 

(2) the Default Notice referred to in the Particulars of Claim

 

(3) any other documents the Claimants seek to rely on in Court.

 

To date the Claimants have failed to accede to the request under the CPR 31.14 and the Defendant has not received any such documentation requested, apart from two separate statements. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

On the 9th January 2009, a copy of the agreement separately via a Sec 77 request allowing 12 + 2 days to respond was requested.

 

 

On the 30th January 2009 a response from NW (CMS) was received in response to the CCA request stating they are not obliged to send me a 'true copy' of the agreement. Documentation attached was a Schedule of Arrears for a loan account and a printed copy of a Credit Agreement for the Personal Loan which bears no signature. The CPR clearly sets out that original agreements must be made available for inspection as set out in Practice Direction 32 which states that:-

 

“13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.”

 

 

The Claimant would be aware of the fact that they would need to be able to produce a copy of the True original agreement should they ever need to take legal action to enforce the agreement. The Defendant requests that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement.

 

Without disclosure of the relevant requested documentation the Defendant is not able to assess if he is indeed liable to the Claimant, nor able to assess if the alleged agreement is properly executed.

 

 

 

Under s 61 of the Act, any agreement regulated by the Consumer Credit Act 1974 Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under s 60(1).

 

The prescribed terms must be within the agreement. They cannot be in a separate document for it to be compliant with s 60(1) [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

 

Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s 60(1), it is improperly executed and only enforceable by court order[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)]. The Claimant has not supplied the Defendant with a copy of the agreement which the Claimant bases this claim upon but a reconstructed one which I may have signed.

 

The Claimants also state in their Particulars of Claim that a Default Notice has been served in accordance with s 87 of the Act. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received.

 

S 87 of the Act clearly sets out that a Default Notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

Furthermore s 88 of the Act requires that a Default Notice must be in the prescribed form. The prescribed format for a Default Notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

Furthermore it is averred that any Default Notice or Termination Notice served that contains penalty charges, the charges are unfair and therefore invalid under the Unfair Terms in Consumer Contracts Regulations.

 

The Defendant puts the Claimant to strict proof that any Default Notice said document in the prescribed format was delivered to the Defendant and that any, allegedly sent Default Notice was valid.

 

 

AND the Defendant

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the Claimant’s default in failing to supply a true copy of the executed credit agreement.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The Claimants are not entitled to claim contractual interest @ 8% per annum as they have not established a legal right to issue a claim or proven that any debt exists.

 

 

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

 

 

Statement of Truth

I, believe the above statement to be true and factual.

Mr Tex

Dated 30th October 2011

[AndyOrch]

Thank you Tex

 

Ok lets assume just for the moment that they successfully attain permission to proceed, and the claim continues, firstly you must stop the SJ

which is quite bizarre considering their PoC and the defence you submitted, but that aside and never the less they have made the application.

They refer to it as an unauthorised overdraft? that you refer to it as a loan account agreement ?

 

Did I vet that defence Tex before you submitted it?

 

Andy

[texanbar]

Hi Andy,

 

Okay, I agree - we need to get the SJ stopped and like you, how they have managed to get this in, as well as hijack our N244 hearing for the application to be struck out is beyond me...

 

Andy, I have gone back over my notes and this thread and think I may have discovered where I have gone wrong

 

The amended POC (see #109) for my original claim (OD and P/L) does indeed refer to both the OD and PL. However, my amended defence (see #114) does not mention the OD at all in it. Despite this, the claim was discontinued and thankfully for the whole claim and not just a part of it.

 

Hence Mr Tex's defence for his claim, was lifted from the post #114. As I was pulling together his N244 form, I asked if I should use the same defence as previously and was advised to do so (see post #378+379).

 

No wonder IM have come back saying his defence is not relevant as it refers only to the PL and not the OD!

 

Oh dear... it would appear that we have not got a defence for the OD then at all and whilst we are using the NoD and the Strike Out claim as our defence - it would not appear so to them. Okay do we need to get an amended defence done ASAP and the witness statements in accordingly.

 

Apologies Andy, no wonder we're all confused - speaking out loud is this how they have managed to get the SJ in then?

 

x:)x

[caro]

Sounds like you need to amend your defence then tex.

[AndyOrch]

Don't worry Tex, I assumed the claim was the same as yours hence my advise to use yours.Hopefully the defence will not be required so lets concentrate on your application to strike out and objections to their Application.When one is bombarded with so many claims for the same debt its bound to get confusing.

Ok their WS is quite weak and obviously starts with their attempt to convince the court this may be the same claim that as been previously been discontinued but the claim is against the other party who has never been issued with said claim.

 

It is still the same claim CPR does not define joint and several and they have picked up on this and the fact that your defence makes no sense, however assuming they get the go ahead they still have to plea their claim and convince the court that they can enforce.Our defence was that as it had been previously discontinued thats the total defence.The fact that the defence was submitted under duress because of the delay in the court processing it should be considered and reiterated in your WS, and I believe you really should not have been required to submit as Northampton can bar input whilst applications are being processed.Should they fail to attain SJ you will be invited to submit a full particularised defence anyway, so nothing lost.

 

Regards

 

Andy

[texanbar]

Hi Andy,

 

Thanks so much for coming back, especially as time is getting on a bit! Hope I haven't torn you away from Strictly, X-Factor, Merlin or Casualty

 

Okay - that's good their WS is quite weak as yes, as stated they are on one hand claiming its a same claim but don't believe the NoD falls under it!

 

Didn't think about the court processing time and yes we will put that in our witness statement accordingly.

 

I'm not sure how the hearing will work because we have been allocated 45 minutes to have the case struck out (again) but the courts have also agreed IM are allowed to have their SJ hearing at the same time!

 

I'll try and pull together a WS for Mr Tex - and get this in asap, I will of course pop it on here first to get feedback and advice.

 

I found this info on the internet - is this useful at all?

 

The difference between joint liability and several liability lies in that the damage caused is different in cases giving rise to several liability. Where the damage is the same, joint liability arises between the tortfeasors. There are other consequences, such as releasing one joint tortfeasor will release all other joint tortfeasors from liability. Subject to satisfaction of certain conditions, this is the case for several liability as well.

 

Thanks Andy - you've been brilliant throughout - let's hope its the last hoop to jump through.

x:)x

[AndyOrch]

The 45 mins is ample because if yours is approved, theirs is in the bin:wink:

[AndyOrch]

Try to get your application in ASAP also TEX then they may be able to deal with all 3:lol:

 

 

Hope I haven't torn you away from Strictly, X-Factor, Merlin or Casualty

Really Tex you think I would watch them????

[texanbar]

LOL! I'll scan the forum for some witness statements and then post one on here within the next 48 hours or so.

 

x:)x

[AndyOrch]

Application for Wasted Costs I was referring to ha ha!!!!

[texanbar]

Andy,

 

Do you mean WS when you mention application? If so, I will do this then for tomorrow. And I take it you mean, the WC costs, the WS for the SJ and our N244 claim for strike out!

 

Oouch - my head is really hurting... need food and sleep

 

I'll sign off for tonight and will post a WS on here tomorrow.

Thxs Andy

x

[AndyOrch]

No you don't need an application for your WS thats just in response .The application is your wasted costs.You need it to land in IM offices before the hearing and the DJ needs a copy also for the hearing.You can use this as a kind of counter claim and as an offset.

 

Andy

[texanbar]

OK - Plan of Action for tomorrow

~~~~~~~~~~~~~~~~~~~~

 

Sorry, so I'll get the Wasted Costs (which I will be adding extra hours onto at this rate) application in asap! I need to add some extra disbursements in (thxs CitizenB) and complete the relevant forms.

 

Then I'll put together the WS for Mr Tex.

Then we'll wait until the hearing date of the 20th December.

 

x