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

[texanbar]

Hi everyone,

 

Okay back again...

 

I think we'll be playing ping-pong with figures until the cows come home but these are the facts we have in black and white. I will pop these in as an attachment due to the number of guests on my thread - will post up shortly

 

x:)x

[texanbar]

Here it is

 

Look forward to receiving your feedback.

 

Kind regards,

Tex

x:)x

Defence required for Current Account2012.doc

[AndyOrch]

I prefer scenario 1 Tex

 

 

Happy New Year

 

Andy

[texanbar]

LOL! Thanks Andy - and Happy New Year to you as well.

 

Yes, Scenario 1 is our 'best case scenario' - but obviously dependent on whether mine and hubby's Bill of Costs are approved and paid.

 

May I ask if you have had any thoughts with regards to the defence at all?

 

Tex

x:)x

[AndyOrch]

Not yet Tex plenty of time this week

[texanbar]

Coolio!

 

Many thanks Andy

Tex

x:)x

[citizenB]

Have you prepared a spreadsheet with the charges on and will that show any interest as well ?

[texanbar]

Hi Citizen and Happy New Year.

 

I do remember doing it back in 2009 and will try and hunt through my spreadsheets. If not, I shall do another one over the course of the next couple of days to get an exact figure.

 

Many thanks,

Tex

x:)x

[citizenB]

I am just thinking it will likely be more because of the interest that would be mounting up.. obviously in your favour.

 

A couple of spread sheets below that you could use, they are the most current ones being used by caggers

 

 

[ATTACH]32472[/ATTACH]

 

[ATTACH]32473[/ATTACH]

[texanbar]

Thanks Citizen - you're a star!

 

I have just been hunting the forums and note I cannot reclaim the bank charges anymore, especially if it relates to an OD. Is this right?

x:)x

[texanbar]

Hi All,

 

Mr Tex here for the first time. I just got off the phone with IM and they clearly didn't want to talk about the case other than to get a settlement figure from me to present to Natwest. I offered up no amounts, I chose to try to offer a trade off with our outstanding substantial bill of costs against the claimed outstanding OD. I was surprised by her response when she stated that since no costs had been assigned at the previous two hearings then there were no costs for IM to answer.

 

Was IM right in saying basically that we cannot assign costs retrospectively to the previous two hearings we won, plus does this also mean that i am too late with costs for the SJ I had dismissed ?

 

Your guidance would be gratefully appreciated.

 

Mr Tex

[AndyOrch]

Normally you would request costs at the time of court appearance, the fact that you have made application after the events is not detrimental to your cases

the Judge will decide in due course be it detailed or summarily assessed.NOT IM.

 

Andy

[texanbar]

Hi Andy/all

 

Thanks for your response earlier to hubby. Yes, we decided last night (rightly or wrongly) for Mr Tex to call IM today to get a feel on whether we could settle this fiasco amicably. We were so very wrong IM were not in the least interested at all in what he had to say. IM were not interested in the fact the amount is in dispute. IM pooh-poohed my Bill of Costs and have absolutely no intention of responding to this, which is evident as the 25 days have just passed.

 

I guess the only road open to us is to continue (as always) with the defence, dispute the amounts, and pay the £60 fee (I think) to get a Default Costs Certificate from the court to pursue my Bill of Costs.

 

Any free hugs going

Tex

[caro]

[texanbar]

Thanks Caro

x

[caro]

What's done is done and at least you know where you stand with them - as of you didn't before. IM can say what they like but as andy says it's what the judge says that matters.

 

Onwards and upwards.

[texanbar]

Hi peeps,

 

Good news - handed in my 'Request for Default Costs Certificate' and it is being processed by the court. They were happy with all the paperwork and envisage it will be sealed and served by next week.

 

Will keep you posted

x:)x

[texanbar]

Exactly! Thanks Andy

 

Normally you would request costs at the time of court appearance, the fact that you have made application after the events is not detrimental to your cases

the Judge will decide in due course be it detailed or summarily assessed.NOT IM.

 

Andy

[texanbar]

Hi peeps,

 

A sneaky post from work -

 

I must serve the defence to courts/IM by Monday 9th January, 2012 - so if there is any possibility of some help in getting this done today, it would be deeply appreciated. If not, I'll have to try and find a fax machine and fax IM their copy on Monday. I can always hand-deliver the one to court.

 

Many thanks, as always, Tex

[AndyOrch]

Let me pull out a copy of a recent overdraft defence Tex you will have to edit to suit.

 

Andy

[AndyOrch]

Ok Tex here is one that was successful, it is important to start your statement off with the fact that this matter as already been to court previously and struck out then go into the history and the penalty charges.Also include in the opening

"res judicata or, as an abuse of process because it raises issues which have, or could have, been decided in previous proceedings, or is an attack on a previous decision or finding "

 

DEFENCE

 

1 The Defendant admits having had a Current Account with overdraft facility with Natwest (RBOS) and which was regulated by The Consumer Credit Act 1974 (The Act).

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution.

 

No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which Natwest and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that any agreement was properly executed and/or is now enforceable in whole or in part.

 

2.A request for information concerning the Claimants Claim was made by CPR request dated xxxxxx to date the Claimant as failed to fully comply with this request and await any Termination Notice and statements in support of their claim.

 

3 without prejudice to the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits non receipt of a Notice Served under Sections 76(1) and 98(1) of the CCA 1974 Termination Notice relied upon by the Claimant,to enable lawfull Termination of the facility.

 

4. Further to the matters set out at paragraph 3, the Defendant avers the Claimant terminated the agreement on or after 28th November 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees,Overdraft Interest and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraph 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 amendment to the CCA 1974 from 1st October 2008 requires the Claimant to issue annual statements to any alleged balance outstanding it is avered that the Claimants has failed to comply with this legislation.

 

 

8 In the circumstances failure of the Claimant’s Notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

9 The Claimant’s claim to be entitled to £5,xxx.09 or any other relief following termination of any agreement is denied.

 

 

 

Regards

 

Andy

[texanbar]

dear Andy,

 

As always, - thank you!

Also, if we are successful in getting any of my WC back, please rest assured CAG will receive an additional donation from the Texanbars!

Tex

xx

 

 

Ok Tex here is one that was successful, it is important to start your statement off with the fact that this matter as already been to court previously and struck out then go into the history and the penalty charges.Also include in the opening

"res judicata or, as an abuse of process because it raises issues which have, or could have, been decided in previous proceedings, or is an attack on a previous decision or finding "

 

DEFENCE

 

1 The Defendant admits having had a Current Account with overdraft facility with Natwest (RBOS) and which was regulated by The Consumer Credit Act 1974 (The Act).

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution.

 

No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which Natwest and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that any agreement was properly executed and/or is now enforceable in whole or in part.

 

2.A request for information concerning the Claimants Claim was made by CPR request dated xxxxxx to date the Claimant as failed to fully comply with this request and await any Termination Notice and statements in support of their claim.

 

3 without prejudice to the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits non receipt of a Notice Served under Sections 76(1) and 98(1) of the CCA 1974 Termination Notice relied upon by the Claimant,to enable lawfull Termination of the facility.

 

4. Further to the matters set out at paragraph 3, the Defendant avers the Claimant terminated the agreement on or after 28th November 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees,Overdraft Interest and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraph 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 amendment to the CCA 1974 from 1st October 2008 requires the Claimant to issue annual statements to any alleged balance outstanding it is avered that the Claimants has failed to comply with this legislation.

 

 

8 In the circumstances failure of the Claimant’s Notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

9 The Claimant’s claim to be entitled to £5,xxx.09 or any other relief following termination of any agreement is denied.

 

 

 

Regards

 

Andy

[AndyOrch]

Need to insert this also Tex within the defence after your opening paragraph the need to serve /disclose a Notice

 

" If they can prove they sent a notice to recall the O/D this is known as " Notice served under sections 76(1) and 98(1) of the CCA 1974.Its like a DN but its not because you have not actually defaulted on anything because no agreement exists to default on. The notice still allows a time for you to offer your proposals and payment arrangements within 28 days of receipt but its not a DN.You should request this as proof that the O/D was terminated lawfully.

 

Andy

[texanbar]

Dear Andy,

Many thanks for helping us in putting together a defence. We have a few points which we need help with - I apologise in advance if we are going over old ground but would rather ask the question(s) than not

a) In our opening we shall ensure we place the res judicata paragraph in as well as the two previous claims which were discontinued and struck out respectively.

 

Going through the defence point by point- we have the following points of concern: green text is good / red text is where we have some questions.

 

DEFENCE

1 The Defendant admits having had a Current Account with overdraftfacility with Natwest (RBOS) and which was regulated by The Consumer Credit Act 1974 (The Act).

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution.

No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which Natwest and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that any agreement was properly executed and/or is now enforceable in whole or in part.

 

AGREE

 

2.A request for information concerning the Claimants Claim was made by CPR request dated xxxxxx to date the Claimant as failed to fully comply with this request and await any Termination Notice and statements in support of their claim.

Although I initially made CPR 31.14 request (7/01/2009) and SAR (09/01/2009), Mr Tex hasn't actually done this. As such, can we include this statement in our defence? (under joint and several).

 

Termination notice: We do have in our possession the original document Notice (the Notice) served under sections 76(1) and 98(1) of the CCA 1974 dated 9/11/2005 for the amount of £3800.

At the time of my two claims, NW couldn't produce the above Notice which is why (according to them) they discontinued my claim 7th April 2011. On 13th May 2011, NW issued to Mr Tex 'the Notice' which is identical to our original dated 09/11/2005 but for the new amount of £6200. I was also issued with the same Notice dated 13 April 2011.

From the original Notice dated November, 2005, we have maintained payments directly to NW, CMS and IM. These payments continued until 28/04/2009.

 

 

3 without prejudiceto the generality of the facts and matters set out at paragraphs 1 and 2 above, the Defendant admits non receipt of a Notice Served under Sections 76(1) and 98(1) of the CCA 1974 Termination Notice relied upon by the Claimant, to enable lawful Termination of the facility.

Don't think we can use point 3 due to above.

 

4. Further to the matters set out at paragraph 3, the Defendant avers the Claimant terminated the agreement on or after 28th November 2008 and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

Don't know if we can use point 4 as it would appear the account has been terminated twice Nov 2005 and April/May 2011.

 

5 Further, incorporated within the sums demanded by the Claimant are sums claimed for administration fees, Overdraft Interest and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

AGREE

 

6 Further and in any event, by reason of the matters set out at paragraph 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

Don't know if we can use this as we cannot use para 3.

 

7 amendmentto the CCA 1974 from 1st October 2008 requires the Claimant to issue annual statements to any alleged balance outstanding it is avered that the Claimants has failed to comply with this legislation.

AGREE

 

8 In the circumstances failure of the Claimant’s Notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

Don't think this can be used.

 

9 The Claimant’s claim to be entitled to £6,xxx.00 or any other relief following termination of any agreement is denied.

The amount is incorrect due to missing payments since discovered by Mr/s Tex of some £480 we made direct to IM from the date 29/12/2008 up to and including 28/04/2009 which have not been applied to the account.

 

 

Other points worth mentioning:

The account was 'closed/terminated' call it what you will, from November 2005 as we had no access to the account and all cards were cancelled forthwith. We couldn't even make credit payments into this account hence payments were being paid via a different NW account. However, from statements they have provided, interest has continued to be accrued monthly.

 

With an initial OD amount of £3700 - 1/11/2005 and despite our monthly payments, interest being levied onto the account crept the balance to £4000 by 28/02/2006. By NW 's record, the last payment (according to them which is now proving incorrect) made on 16/01/2009 the balance had risen to £4450.

 

Subsequent from 19/11/2010 amount outstanding is now £6200. There is no sense as to why interest has now ceased from this date?

 

Of course we want to argue why have IM been holding onto funds we made to them which should have been applied to the amount outstanding thus reducing the overall compound interest.

 

Should I mention my Bill of Costs at all, or should we put in costs for Mr Tex?

 

Sorry for the lengthy post - be pleased to get this out on Monday and then wait until the court hearing date.

 

Thanks for all the help with this one Andy - I know it's been going on for so long now.

Warm wishes

Tex

[AndyOrch]

Hi Tex

 

Ok remove any reference to CPR as its not applicable being an OD.Unless you was to request a copy of the Notice (the Notice) served under sections 76(1) and 98(1)

Having 3 versions of the same Notice for different amounts is a plus to you as only one should be issued, you could within your defence ask which one they wish to rely upon as termination can only happen once.?

 

It is important to refer to the missing payments and the incorrect amount ( hence the DJs dismissal of SJ).

 

Don't refer to your costs within the Defence that is a separate issue and yet to be confirmed.

 

If you can post up your final draft Tex or PM it to me if rather and I will give a final check before Monday.

 

Regards

 

Andy