Luxx -v- RBOS **Bank resumes claim from 2009 !!??**

[Luxxinterior]

Evening All,

Been a while, but RBOS are back after the test case and are claiming for the bank charges element of this old claim. Since the case was stayed in 2009, the amount owing is now statute barred. So my question is can i use this as part of my defence (which has to be in by tomorrow), or does the stay allow them to still claim?

 

Also, I am unclear as to when the test case even finished? Anyone any ideas?

And since the test case, has anyone dealt with similar claims where the bank are claiming charges from you?

 

Any advice is greatly appreciated.

[Luxxinterior]

Actually...i believe that the test case finished in nov 2009?... last payment on the account was jun 2007 - in march 2009 RBOS kindly credited the same account with the £1 i sent for a copy of the CCA which I specifically stipulated was only to be used for the purpose of the CCA (thankfully i retained all correspondences) ...so again question is, is this statute barred?

[slick132]

Hi Luxx,

 

Can you tell us what's happened for this to be brought back as a "live" case. For example, did the bank apply to have the Stay lifted and when.

 

From a brief read back through the thread, the o/d was made up entirely of unlawful charges.

 

If the last payment made to the a/c was back in 2007, I would work on the lines that the bank had plenty of time to apply for the case to be unStayed, before the debt became older than 6 years.

 

I'd argue that they have failed to act in a timely manner after the Supreme Court ruling decided that default charges were allowed.

 

[Luxxinterior]

good plan Slick...that's what i thought.. this has only come alive again in the last month or two. they applied for the stay to be lifted and the court wrote to us and said defence had to be in by tomorrow.

We rang them to explain wed been through this before and already submitted defence, loan claim was discontinued, AQ completed and even sent the court bundle to court and claimants. They said just submit defence for the bank charges bit by 4pm tomorrow

[slick132]

Can you confirm when they applied for the stay to be lifted.

 

When did you get notice of this.

 

If you have already submitted a Defence, I wonder why the court is now telling you to do this again.

 

However, after the result of the Supreme Court case, your old Defence will be redundant and far less useful in defending against their claim against you. If you have not been given adequate warning of the need to file a new and updated Defence, you need to apply for more time to do this.

 

In any event, I think you will need to tackle this differently from how it would have been done way back in 2009. It may be that you should oppose the lifting of the Stay and apply for the case to be Struck Out as an abuse of process, based on their failure to bring the matter back to court in a timely manner.

 

I'll ask for more input on this from Site Team and I've changed the thread title slightly.

 

Answer my Q's above and we'll take it further.

 

[Luxxinterior]

We received a letter from DWF dated the 6th Feb including an application notice for the stay to be lifted, and asking for the defendants defence and counterclaim to be struck out as no possibility of success etc, and looking for us to pay costs.

Then received a letter from the court dated the 10th saying the parties have to file a defence and counterclaim by 4pm today

 

Last activities on the account were one final payment from my wife in Dec 2007 , followed by them paying in the £1 postal order in March 2009 after we requested the CCA and stated that the £1 was to be used speicifically for that purpose alone.

[Luxxinterior]

This is what i came up with this morning by way of a defence.. any advice/suggestions/inclusions or omissions?

Do i need to include any documentation referred to in the defence at this stage?

 

All advice welcomed

 

1) The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedure Rules.

2) The claimant was unable to produce any evidence by way of a consumer credit agreement for redress sought in the original Claim in relation to an alleged loan agreement, and that element of the claim was retracted.

 

2) The claimaint’s claim was stayed in Oct 2009 to allow the outcome of the OFT test case around unfair bank charges

3) The OFT test case concluded in Nov 2009.

4) The Claimant has failed to act in a timely manner since the outcome of the OFT test case, and the account to which the claimant refers to is now statute barred.

5) According to documentation received by the claimant in 2009 as a result of a SARS request, a statement from the claimant records final activities by the defendant on the account as being in Dec 2007.

6) A subsequent deposit of £1 is recorded in March 2009 following a request to the claimant (including a £1 postal order for administration fees) for a copy of the alleged loan agreement.

7) In a letter to the claimant dated 16/02/09 the defendant specifically stipulated that the £1 postal order was not to be used for the purpose of anything other than obtaining the alleged Consumer Credit Agreement for the alleged loan to which the claimant could not respond.

8) The Defendant denies making or authorising any payment on the account since Dec 2007 and puts the Claimant to strict proof if the suggestion is otherwise.

8) The Limitation Act 1980 Section 5 states “An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

9) The last payment or acknowledgement of this debt was made over six years ago and no further acknowledgement or payment has been made since that time.

10) Unless the claimant can provide evidence of payment or written contact in the relevant period under Section 5 of the Limitation Act, I suggest that this case be struck out as an abuse of process.

 

11) Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how it is asserted that the sum claimed is contractually owing.

 

12 ) Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

Statement of Truth

I believe that the facts stated in this defence are true.

 

[slick132]

Site Team are aware and will look in asap.

 

When did you receive the letter of 10th Feb. If you rec'd this late, you should tell the court the deadline to file submissions is unreasonably short is in view of the delay in sending the notice out. You could seek an extension in case this is not sorted today. However, the draft Defence above looks ok and you may prefer to submit this, rather than miss the deadline.

 

Don't include abbreviation "SARS". Use "Subject Access Request".

 

[Luxxinterior]

Thanks Slick,

I will wait as late as possible before i send by email to both court and RBS.

[slick132]

Opinion so far is that the case cannot be SB'd once the court action was commenced.

 

I'm still waiting on opinion about the Claimant's failure to have the Stay lifted in a timely manner, like a LOT sooner.

[Luxxinterior]

Thanks for your help slick

I take it the CPR dows not specify a maximum stay period? Pity bout the statute barred bit, may just leave it in anyway and argue it in court ...albeit perhaps unsuccesfully

[Luxxinterior]

from what i can see, the only relevant mention of stays is in part 26 of the CPR

 

Stay to allow for settlement of the case

 

26.4

(1) A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.

(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.

(3) The court may extend the stay until such date or for such specified period as it considers appropriate.

(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.

(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.

 

Seems to suggest that in this case the stay should have been lifted after the test case finished ie: Nov 2009

[AndyOrch]

Could you bring the particulars forward Lux (verbatim) less any identifiable data.

 

Regards

 

Andy

[Luxxinterior]

Hi Andy

The original POC was literally this:

"The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.....and the claimant claims 1. £5427.57"

 

I am just attaching some photos just taken of the doc recently received (n244)

[AndyOrch]

"The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.....and the claimant claims 1. £5427.57"

Thats it in its entirety no account numbers.... no interest.... no Pre action protocol?

[Luxxinterior]

"The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.....and the claimant claims 1. £5427.57"

 

Thats it in its entirety no account numbers.... no interest.... no Pre action protocol?

 

That was the original POC back in 2009

 

This is the recent communications dated the 6th Feb

[ATTACH=CONFIG]49369[/ATTACH][ATTACH=CONFIG]49370[/ATTACH]

[AndyOrch]

If you could convert to Pdf ..I seem to have misplaced my magnifying glass

[Luxxinterior]

"The claimants claim is in respect of monies due pursuant to an account maintained with the claimant.....and the claimant claims 1. £5427.57"

 

Thats it in its entirety no account numbers.... no interest.... no Pre action protocol?

 

Ok That didnt work too well...sorry

[Luxxinterior]

That Better?

[AndyOrch]

Okay so they are also requesting Summary Judgment (CPR24) but without the need of an hearing should CPR 3.4 fail.

 

Personally I see a need to vary the original defence and CC greatly the Supreme Court ruling does not change the stance...it simply confirmed that OFT can not challenge unfair charges in the way that they did with Credit Cards.It was not adjudged that the penalty charges are fair or unfair or unlawful..as stated more to do with warning the OFT off their backs.

 

Since that ruling you will note that bank charges have decreased considerably and even been eradicated in some cases therefore only confirming that the OFT were correct to try to challenge them.

 

The only amendment required to your original defence would be the addition that the claimant by not acting promptly following the Supreme Court ruling as disadvantaged you by delaying your counter claim and also prevented said debt from becoming Statute Barred pursuant to the Law and Property Act and statute of limitations.

 

It is unjust that the claimant is allowed to proceed on a claim that has been stayed and remained stayed for a period of xxxxxxx which penalised your counter claim from proceeding.

 

 

Edit to suit.

 

Regards

 

Andy

[Luxxinterior]

Okay so they are also requesting Summary Judgment (CPR24) but without the need of an hearing should CPR 3.4 fail.

 

Personally I see a need to vary the original defence and CC greatly the Supreme Court ruling does not change the stance...it simply confirmed that OFT can not challenge unfair charges in the way that they did with Credit Cards.It was not adjudged that the penalty charges are fair or unfair or unlawful..as stated more to do with warning the OFT off their backs.

 

Since that ruling you will note that bank charges have decreased considerably and even been eradicated in some cases therefore only confirming that the OFT were correct to try to challenge them.

 

The only amendment required to your original defence would be the addition that the claimant by not acting promptly following the Supreme Court ruling as disadvantaged you by delaying your counter claim and also prevented said debt from becoming Statute Barred pursuant to the Law and Property Act and statute of limitations.

 

It is unjust that the claimant is allowed to proceed on a claim that has been stayed and remained stayed for a period of xxxxxxx which penalised your counter claim from proceeding.

 

 

Edit to suit.

 

Regards

 

Andy

 

Many Thanks for the advice Andy, and many thanks to Slick too.

I will amend the defence accordingly and get it sent. Will let you know the outcome

[AndyOrch]

You may also wish to submit a Witness Statement in response to their application vis a CPR 24 (Summary Judgment) this must be served not less than 7 days pre hearing.

 

Best of luck

 

Andy