Overdraft in dispute, defend court claim?

[James31]

Hi,

 

I was in the process of re-claiming bank charges when the OFT case came along, so didn't issue an N1 form. I intended to continue after the outcome. Claim was for 10k, Abbey paid 2.5k good will which I refused in writing but they paid it anyway into my frozen account.

 

A year on, I have had a court claim form from a solicitor because the account is overdrawn to the tune of 8k. My claim almost covers this.

 

I want to defend the claim, but is it enough to say that this account is in dispute on the basis that there are illegal charges yet to be paid back to me? Is that a valid reason to defend?

 

James

[PGH7447]

Did you touch the 2.5k from shabbey?

 

if not and you stated at the time that this was insufficient then I see no reason why you cannot defend it due to it being in dispute.

 

who is the solicitor by the way?

[James31]

I didn't touch the money. Shortly after, my account was frozen, leaving it overdrawn by about 8k.

 

Had a letter from Robinson way to say they had purchased the debt earlier this year. Solicitor is Horwich Farrelly.

 

I'm a bit annoyed seeing as I have been in limbo over the rest of my claim and now this.... I just wasn't sure if the account being in dispute is enough to defend, or if I should counter-claim (doesn't seem right, it's Abbey I was claiming from, not Robinson Way). I have until 20th to acknowledge the claim online.

 

James

[I've got no money]

You defend on the basis that you don't owe the money as the account charges are pursuant to an unfair contract term

 

If the account charges are greater than the debt then you need to counterclaim - with interest they may be - if the account charges are less than the debt. I think that its' OK to just defend

 

What you ought to do is calculate how much you think that you owe them and, assuming that you can afford it, make a part 36 offer of that amount

[tinkerbell20]

I didn't touch the money. Shortly after, my account was frozen, leaving it overdrawn by about 8k.

 

Had a letter from Robinson way to say they had purchased the debt earlier this year. Solicitor is Horwich Farrelly.

 

I'm a bit annoyed seeing as I have been in limbo over the rest of my claim and now this.... I just wasn't sure if the account being in dispute is enough to defend, or if I should counter-claim (doesn't seem right, it's Abbey I was claiming from, not Robinson Way). I have until 20th to acknowledge the claim online.

 

James

 

 

use the defence of set off. That way you won't have to counterclaim

[42man]

moving to legal forums...

[James31]

Thanks guys. I will file my defence.

 

If anybody could help with the wording of the important parts, I would be very grateful...

[I've got no money]

I'm not an expert in banking cases but I would have thought its' not a case of set off. I'd have thought its' a much more basic defence - that is I don't owe the money because the contractual clause under which it is imposed is not lawful...

[James31]

Here are the numbers, for info...

 

Original Claim (Charges + 8% Interest): £9,881.00

Good Will Gesture Paid by Abbey: £2,300

Outstanding: £7,581

 

Solicitors claiming from me for outstanding overdraft: £8,232

 

My original claim had interest calculated as at April 2007. So, there are a couple of more years to be added now. I reckon that takes it to around £8,842 - more than they are claiming.

[BankFodder]

I'm straining a bit to understand who owes what to who, here -- but it is a shame that you didn't continue your claim because apart from anything else you could have added 8% which would be mounting up for you right now.

 

Your claim was the £10,000 then, how much do they owe you now? Have they continue to levy the charges? Also, on the original £10,000 charges have you added all the interest that they have taken off you in respect of those charges as well? Unlawful charges means that interest levied on those charges is also unlawful and has to be recovered. I suspect that your claim might be much larger than you think.

 

I think that your correspondence to the other side should assume that your original claim is not abandoned. In other words you ought to write to them in terms "as they fully know the claim is in dispute as you raised the matter in 2007 and demanded repayment of your charges then." You should point out to all the parties that their claims is comprised wholly of bank charges which you are in the process of reclaiming since 2007 and which you fully expect to be completely reimbursed once the test case is decided.

 

They are claiming£8000 from you that you say there is already to a half thousand pounds sitting in the close account. Doesn't this mean then that they should only be claiming £5500 -- you can see that I don't completely understand what your figures are saying.

 

Certainly you are in a strong position and it is just the question of how you should deal with it.

 

Personally I tend to favour at the moment issuing an N1 for a new claim as a continuationof your claim in 2007 and adding 8% interest straightaway. There is no reason why they should get away with this. There is no reason why you should not have the benefit of this interest as they are currently enjoying interest on your money.

[James31]

Thanks very much for replying, bankfodder. I posted some numbers above, just before you replied...

[BankFodder]

In fact, use the fact that they have paid out for the claim against you to put in a counterclaim.

 

Defend the action on the basis that you deny that you are indebted as alleged or at all.

 

That if there is any indebtedness any alleged indebtedness is comprised wholly of bank charges which are presently the subject of continuing litigation in the House of Lords.

 

That the claim and was informed of this in2007.

 

Then counterclaim:

 

Outline your bank charges claim in exactly the same way that you normally would if you were bringing the claim independently.

 

Enclose a schedule charges, make sure at the end that you claim 8% under the County Courts act 1984 -- section 69.

 

Put all of that in.

 

In principle if your counterclaim exceeds the value of the claim then you would have to pay a balance of a court fee. However, they won't be much in it and often they don't bother to do the calculation. The chances are that you will be able to put in your claim either for a very small fee or free of charge.

 

All of this will have the effect of blocking their claim, getting your claim in, getting your 8% statutory interest ticking along -- and also causing some difficulty between the bankand the people to whom they have sold the debt.

 

Having said that I suddenly had to ask whether the claimants are the bank or somebody else?

[I've got no money]

 

Certainly you are in a strong position and it is just the question of how you should deal with it.

 

Personally I tend to favour at the moment issuing an N1 for a new claim as a continuationof your claim in 2007 and adding 8% interest straightaway. There is no reason why they should get away with this. There is no reason why you should not have the benefit of this interest as they are currently enjoying interest on your money.

 

On that basis BF how do you suggest that the current claim brought by the bank is replied to...

 

If you were to issue an N1 which relates to the subject matter of an existing claim - arguably that would be an abuse of process - even if it weren't at best the court would consolidate the two claims. The OP would have to pay an issue fee.

 

Surely - assuming that the banks' claim is greater than the account charges - isn't it cheaper to simply defend on the basis that the monies claimed are not owing

[BankFodder]

by the way, how far back did you claim?

[James31]

I was unsure about counter claiming as, as you ask, it's Robinson Way c/o Horwich Farrelly Solicitors who issued the claim. They purchased the debt from Abbey. (Probably for 10% of the value, I expect!).

 

The charges in the original claim ran from 20th Feb 2002 to 20th March 2007. However, there were only 4 during 2002, the remainder are all from 2004 onwards.

[I've got no money]

I was unsure about counter claiming as, as you ask, it's Robinson Way c/o Horwich Farrelly Solicitors who issued the claim. They purchased the debt from Abbey. (Probably for 10% of the value, I expect!).

 

The charges in the original claim ran from 20th Feb 2002 to 20th March 2007. However, there were only 4 during 2002, the remainder are all from 2004 onwards.

 

That's fine - as most are within 6 years - so there's not a problem

 

How much were the four in 2002

[James31]

4 x £32

[BankFodder]

Okay. You won't be able to counterclaim. Simply put in a defence that you deny the alleged debt and that if any debt does exist then it is comprised entirely of charges which themselves are subject of a separate claim against the original creditor.

 

This is all you need to say. The claim will immediately go on hold. They will be a good argument between the bank and RW -- and I can imagine that the file will go back to the bank. If RW and others like them had enough of this kind of thing happening then they will start to be a bit more careful about what they are buying -- a pig in a poke.

 

You should calculate all your bank charges. If you have been unable to access the £2500 in the closed account then claim this as well including the interest on it. They cannot say that they have satisfy the claim simply by stashing the money in someplace where you can't get it.

 

I'm afraid that you are claiming such a lot of money, but it will cost you a fair bit in court fees. However, believe me it is worth it. Even in the last two years at 8% on £10,000 you will give up £1600 interest if you don't put your claim in before the end of the test case. I can imagine that once the test case is settled and that a repayment scheme is announced then there could be a risk of being liable to wasted costs if you bring an action for refund of charges without a good reason for waiting for the repayment.

 

Get it in now.

 

If you have charges going further back, then claim those as well. I think everybody should claim the charges back to 1995. I think that there is a very good basis for arguing that all charges claim back to 1995 should be repaid -- and we are working on arguments and templates to support this.

 

Watch this space

[James31]

Thanks for all your help.

 

I will get on with it and report back!

 

James

[joneseyblod]

Bankfodder

 

"If you have charges going further back, then claim those as well. I think everybody should claim the charges back to 1995. I think that there is a very good basis for arguing that all charges claim back to 1995 should be repaid -- and we are working on arguments and templates to support this.

 

Watch this space"

 

Would be very interested in that!

 

Only issue is under DPA banks only keep hold of information for as long as is necessary. And in all cases I have struggled to get statements for more than six years as they say they no longer have them...

 

Without statements no-one will know how much they have been charged since 1995.

 

JB

[BankFodder]

You should not limit your SAR request to statements.

You shoujld ask for all personal data including account information, screen notes and any correspondence ....

[James31]

Update: I filed my defence online as suggested, and I then received an Allocation Questionnaire which has a due date of 27th July so I have posted today. Doesn't look as if the account went on hold?

 

The questions all seem geared towards claiming rather than defending, so I just filled it out the best I could and once again, mentioned that the account is still in dispute with the original creditor, I deny the alleged debt and if any debt exists it is subject to a separate claim against the original creditor (Abbey).

 

I haven't had any corresepondance from Robbingscum Way during the period.

[James31]

Today I have received a trial date for November! I defended the claim, said the account was in dispute. I wasn't expecting this.

[BankFodder]

I'm not too sure what you were expecting then. You want to challenge the claim. they sent you a claim form.you put in a defence which denied the debt and presumably you signed off as a statement of truth. Now the case has been allocated and both parties will be heard on the allocated date.

 

This is entirely normal County Court procedure.

 

Now you need to start preparing all of your arguments. Is the alleged debt comprised of charges? If so you should have said so on the defence.

[James31]

Thanks for replying BankFodder.

 

Back in May, you said: "Simply put in a defence that you deny the alleged debt and that if any debt does exist then it is comprised entirely of charges which themselves are subject of a separate claim against the original creditor.

 

This is all you need to say. The claim will immediately go on hold. They will be a good argument between the bank and RW -- and I can imagine that the file will go back to the bank. "

 

When I go along to the hearing, I'll have nothing new to say that I didn't already put on my claim form. I'll just be saying that the alledged debt is comprised of bank charges, and that's all I can say really.

 

I was expecting them to drop it given that the account is in dispute with Abbey.

 

I'm worried I'll just be trounced on, on the day, and come out with a shiny new CCJ for around 9k.