Help with writing defence over Natwest Overdraft Please?

[liir]

Will shoosmiths send me a copy of the termination notice, I think I asked for copies of just about everything in my letter to them? Will they also send me statements as I've received nothing from Natwest for nearly 4 years?

 

Thank you very much for your help, I can carry on with this at work tomorrow if you contact me in the daytime. I'm starting a new job next Monday and I will be able to increase my payments to payplan. Should I inform them straight away or is it just not worth it? I'm worried I might get an attachment to earnings as I would rather my new employers didn't know about all this until I'd been there a bit.

[AndyOrch]

Will shoosmiths send me a copy of the termination notice,Doubt It dont think the bank retains one I think I asked for copies of just about everything in my letter to them? Will they also send me statements Fingers crossed yes as I've received nothing from Natwest for nearly 4 years? Thats because when CMS at Telford take over your account your account is trailed via the router account

 

Thank you very much for your help, I can carry on with this at work tomorrow if you contact me in the daytime. I'm starting a new job next Monday and I will be able to increase my payments to payplan.Not NW i hope Should I inform them straight away or is it just not worth it? I'm worried I might get an attachment to earnings as I would rather my new employers didn't know about all this until I'd been there a bit.

No dont worry they are a long way off that yet and good luck in your new job

 

Regards

 

Andy

[liir]

Thanks again I will get the holding defense off as soon as I receive it from you.

[AndyOrch]

Hi liir

 

Just for information this is applicable to overdrafts and their standing with regards to the Credit Consumer Act 2004.:-

 

1.1 What is covered by the s74 determination?

 

A determination under s74(3) was made by the OFT with effect from 1 February 1990. It applies to d-c agreements enabling the debtor to overdraw on a current account, under which the creditor is a ‘bank’ as defined in the Bankers’ Books Evidence Act 1879, provided that certain conditions are satisfied – see Q1.5.

 

A separate determination was made in respect of certain agreements connected with the death of a person.

 

Copies of the determinations may be obtained from the OFT.

 

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution. However, the Agreements Regulations will apply to any document embodying such an agreement, and to any term expressed in writing – see Q1.2.

 

1.2 Are all bank overdrafts exempt?

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

· the creditor must inform the OFT in writing of his general intention to enter into such agreements;

· the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

· the above information must be confirmed in writing.

 

Furthermore, where a debtor overdraws a current account with the tacit agreement of the creditor, and the account remains overdrawn for more than three months, the creditor must inform the debtor in writing not later than seven days after the end of that period of the annual rate of interest and any charges applicable.

 

 

Defence to follow shortly

 

Regards

 

Andy

[AndyOrch]

Particulars of claim:

 

The defendant (D) held accounts as listed below with the claimant ©

D failed to pay the sums due to C when demanded and the sums listed below remain outstanding

 

Account Number Debt Balance

XXXXXXXXXXXX 5240.09

C has complied as far as is necessary with the pre-action conduct practice direction

[liir]

Glad your back!

[AndyOrch]

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.

 

 

Ok Iiir check the above and see if its ok.Once happy copy and paste the above into MCOL and print off your reciept as proof of submission.

 

Regards

 

Andy

Edited September 23, 2009 by Andyorch

[liir]

Thanks for that, I'm happy with it although I don't understand most of it. What's MCOL? Do you mean I should do this online?

 

Also, how do I reimburse you in some way or give money to the CAG?

[AndyOrch]

Thanks for that, I'm happy with it although I don't understand most of it. What's MCOL? Do you mean I should do this online? Yes if issued from Northampton CCBC There should be a password on the Claim.

Also, how do I reimburse you in some way or give money to the CAG?

 

The system on Cag is you can tip my scales if happy(silver scales middle icon bottom left and any donations to Cag are always welcome:)

 

 

I wish you well with your Case

 

Regards

 

Andy

[liir]

Thanks again for all your help. I've just submitted the form but stupidly ended up putting the wrong year on my DOB, that's what stress can do to you. I'll ring the court tomorrow and try and sort it out. I'll be in touch again when I hear anything. I am so grateful for your help.

[AndyOrch]

Ok Liir

 

The Claimant now has 28 days to respond to your defence,if not the case is stayed until such time they do respond.If they do you will recieve notification from Court and also be sent an AQ ( Allocation Questionnair)to complete and the case will be transfered to your local CC.

 

Regards

 

Andy

[liir]

I've had a response from the solicitors, they have sent me:

 

1. Statements of account numbered xxxxxxxx from dates 19 May 1994 (account opened) to 18 September 2009 (but these were not sent to me personally since I've bee with payplan)

2. Copy Notice served under Section 76(1) and 98(1) of the Consumer Credit Act 1974 dated 11 November 2005 (not sure if i've received these before or not, I can't find original copies)

3. Terms and conditions for Current Plus Account.

 

What do I do now please?

[AndyOrch]

Hi Liir

 

Firstly can you post up the Termination Notice (less any personal details and amounts) and secondly go through your statements and total all unfair charges ie O/L fee / DD returned etc.

 

Regards

 

Andy

[liir]

Hi

 

I'm at work at the moment but as soon as I get in tonight I will type up the whole letter from Shoosmiths and all the other details that you ask for.

 

One thing I have noticed is that they haven't included a copy of any agreement that I've signed when I took out the bank account in the first place.

 

Also, Shoosmiths say in their letter that they are going to apply to have my submitted defence thrown out and are going to go for full settlement plus legal costs. I'm assuming this is just another attempt to get me to settle before it goes to court. I haven't had any further notification from the courts as yet but what with the postal disruptions at the moment that doesn't mean anything.

 

Anyway thanks for being there and I will type in all the relevant information tonight when I get home. Thanks.

[AndyOrch]

Hi

 

I'm at work at the moment but as soon as I get in tonight I will type up the whole letter from Shoosmiths and all the other details that you ask for.

 

One thing I have noticed is that they haven't included a copy of any agreement that I've signed when I took out the bank account in the first place.They dont keep one and dosent exsist re overdraft content

 

Also, Shoosmiths say in their letter that they are going to apply to have my submitted defence thrown out and are going to go for full settlement plus legal costs.And you will object I'm assuming this is just another attempt to get me to settle before it goes to court.Mindgames I haven't had any further notification from the courts as yet but what with the postal disruptions at the moment that doesn't mean anything.Check on screen MCOL status ......Defence submitted date xxxxx

 

Anyway thanks for being there and I will type in all the relevant information tonight when I get home. Thanks.

 

Regards

 

Andy

[liir]

Right here we go, first the letter from Shoosmiths

 

The first bit of the letter is just about copies of the letters they have sent back to me and details of the documents they have sent to me which I mentioned in my post yesterday.

 

It goes on:

 

"We have now provided complete statements of accoun for the account numbered xxxxxxxxxxxxxxx, along with copy notifications and terms and conditions.

 

We draw attention to page 321 of the statements of account, in particular where it states "your interest rare for borrowing up to £1,550.00 of this account is 16.49% PA. This is the credit zone rare. Should your overdraft exceed this level the excess will be charged at our unarranged borrowing rate, currently 29.5% PA.

 

Considering the above, we invite you to accept our client's claim in full. We do not believe that your Defence contains sufficient grounds fo defending the claim. We ask that you forward your proposals for payment in this matter.

 

In the absence of a response to this letter we shall be making an Application at Court to Strike Out your Defence and be claiming our full costs occasioned by the same.

 

We trust this will not be necessary and look forward to hearing from you within the next 14 days.

 

We reserve the right to show this letter to the Court on the issue of costs."

 

The letter is dated 5th October 2009.

 

I will post the rest of the information you required in another post so don't reply just yet.

[liir]

I presume this is the Termination notice.

 

Notice served under section 76(1) adn 98(1) of the consumer credit act 1974.

Overdraft on account number xxxxxxxxxx

Your overdraft is repayable on demand being made by the Bank: and such deman will terminate the overdraft arrangement. The Bank intends to demand paymet fo the Total Amount Outstanding as set out below (if necessary by Court action) and accordingly terminate the overdraft arrangement on or after 25/11/05 unless by that date you have made an alternative arrangement for repayment which is acceptable to the Bank.

 

Principal £3xxx.00

Interest to the date shown above £ 7x.00

Total Amount Outstanding £3xxx.00

 

Principal includes the £30 fee charged for this notice which will be applied to the account befor the date shown above.

 

Interest will continue to be applied to the account and the Total Amount Outstanding will increase accordingly, if payment is not made by the date shown above.

 

If you have difficulty in paying any sum owing under the agreement you can apply to the court which may make an order allowing you or any surety more time.

 

If you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards dept or you nearest CAB.

 

There is then a space for a signature but there isn't one and then the date 11 November 2005

 

Hold on while I get the rest of the information.

[liir]

Well looking through the 400 odd pages of statments it looks like Natwest just kept letting the DDs go through and letting the overdraft get bigger until I'd moved over all my direct payments to another bank account as advised by the CAB when all this first started.

 

There is then months and months where I've paid an amount through payplan and natwest have charged me interest and applied a charge which in total is more than the amount I was paying off through payplan. I didn't know natwest were still charging me interest or applying charges as I never had any statements in this time.

 

I've also found a letter from the court dated 24th September 2009 saying "I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimants solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you what will happen.

 

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

 

Sorry if this is all getting confused, in the last few weeks I've had two very ill elderly parents to deal with as well. Everything always seems to happen at once.

 

Do you need me to work out what interest was charged and what charges were applied in all this time?

[liir]

Ok all the figures now!

 

Total Interest charged since Sept 2005 is £2798.60

Total I've managed to pay off through payplan £1049.86

 

Total charges £212 - what's listed as charges only happend in 2005/06 but includes 3 charges of £30 listed as a "Default Notice Fee" on 3 separate occasions.

 

Also the interest charged doesn't seem to make any sense from month to month and seems to go up and down willy nilly regardless of how much I've paid off.

[liir]

Is there any other information you need at the moment?

[AndyOrch]

Hi Liir

 

What date is on the termination Notive does it allow 14 days to come to some satifactory agreement?

The account interest should have been frozen whilst you were on your DMP so therefore that can be counterclaimed along with unfair charges and Dn charges.The fee for the credit zone cant!!!.

 

Andy

[liir]

If the letter i quoted earlier as the termination notice the date by the place for the signature is 11 November 2005, although as I said earlier there isn't a signature.

 

In the main text of the letter it says they will terminate the overdraft agreement on or after 25/11/05 unless I have made alternative arrganements. which I suppose is giving me 14 days to come to some satisfactory agreement.

 

There doesn't seem to be any credit zone charges as such, it's just all masses of interest.

[AndyOrch]

Ok all the figures now!

 

Total Interest charged since Sept 2005 is £2798.60 This is the date you had a payment plan from?

Total I've managed to pay off through payplan £1049.86

 

Total charges £212 - what's listed as charges only happend in 2005/06 but includes 3 charges of £30 listed as a "Default Notice Fee" on 3 separate occasions.

 

Also the interest charged doesn't seem to make any sense from month to month and seems to go up and down willy nilly regardless of how much I've paid off.

 

Ok £3100.60 as a possable counterclaim.

Termination Notice is in order then apart from the amount in question.

Not much to do from here on until (if) you recieve an AQ.Update asand when.

 

Regards

 

Andy

[liir]

Ok, thanks again. I'll wait and see what happens next.

[liir]

Hi, this is the latest update. I had a letter from Shoosmiths saying the following:

 

"We are disappointed to have not received a response to our letter dated 5 october 2009. We have now provided complete statements of account for the account numbered xxxxxxxxxxxxxx, along with copy notifications and terms and conditions.

 

We do not believe that your Defence holds sufficient grounds for Defending the claim. We therefore enclose the following;

 

1. Draft Consent Order

 

We invite you to sign and return the attached Orde to ourselves to be filed at Court. As you will see, the Consent Order provides Judgment to be entered in the sum of £xxxxxxxxx. The Order further provides that there be no Order as to costs.

 

We ask that you sign and return the Consent Order within the next seven days and also ask that you forward proposals for payment in this matter.

 

If you have any questions please contact our xxxxxx on xxxxxx.

 

If you are unsure as to the content of the Draft Consent Order we suggest you seek independent legal advice.

 

We look forward to hearing from you within the next 14 days.

 

We reserve the right to show this letter to the Court on the issue of costs."

 

 

The amount they are claiming still includes the ridiculous amount of interest. What should I be doing now? I have only submitted the holding defence you wrote for me, should I be adding more to my defence? Natwest have not kept me informed over the last few years how the amount I owed was increasing, I thought they had to do this? Also, if I accept this amount it will ruin the arrangement with all my other creditors and they might all start charging interest. How can I make sure I get the chance to go to court and the court doesn't just rule that I owe this amount?

 

Awaiting your reply with baited breath.

 

The letter by the way was dated the 28th October.