Big Overdraft - must respond to Court Claim - Please help!

[vint1954]

The service of the document is based on working days, excluding weekends and bank holidays. ( time in the post) This is 2 working days for 1st class, 4 working days for second class and other means such as UK mail and TNT.

 

The days allowed for rectification in any notice are callendar days.

[vint1954]

Termination notices do not have to contain a prescribed time to rectify. That would have been in the DN.

 

The termination notice, just terminates the agreement.

[Martel]

Hi Vint,

 

Huge thanks for the clarification. In post 243, Andy refers to whether or not the TN 'complies'. It's a moot point as the calculation is 14 CALENDAR days and the Bank's notice to terminate was within this deadline.

 

Thanks again!

 

MX

[vint1954]

Hi Martel,

 

Understand. With an overdraft they do not normally need to give a DN, but rathet a Notice to terminate, which as Andy says is 14 days.

 

Under CCA its DN then TN.

[pumpytums]

I'm sorry I don't have time to read the full thread. Was the current account advantage gold because If so I would claim for it back. My SAR never showed why it was attached to the account and I never claimed any benefit.

 

If it ever came to it mine would be worth £1.5k+ in a counter claim.

 

Pumpytums

[Martel]

Hiya,

 

Mine was Advantage Private - I don't understand when you say it was attached to your account...do you mean an overdraft facility?

 

If the Bank put a facility on your account that you didn't request, I would absolutely go after the Bank and claw back whatever you've been unfairly charged for.

 

MX

[Martel]

With endless and heartfelt thanks to Magda, CitizenB, Car2403 and Andyorch, the Amended Defence arrived in Court on time. I am so very grateful for your support, advice and TIME.

 

I cannot thank you all enough!!!!!!

 

MXXXX

[MAGDA]

Hope it does the trick Martel! Glad it's all done now - one less thing to worry about:)

 

Magda

[Martel]

Magda, you are an amazing motivator!! Will keep you posted.....hoping all is well with you! MX

[MAGDA]

Hi Martel, how are things going with you?

 

Magda

[Martel]

Magda, you must be psychic because.....

 

Today I received an Application Notice from Cobbetts, asking the Court to strike out my Defence and make a judgment in favour of NatWest 'pursuant to CPR 3.4 (2) (a) (ii) and (b) as the Defendant has no real prospect of successfully defending the Claim and there is no other compelling reason why the case should be disposed of at trial.'

 

They then suggest a 30 minute hearing.

 

Their 'evidence' is:

.......2. the Claimant submits that the Def's Defence by struck out and there be Judgment for the Claim Pursuant to CPR 3.4 (2) (a) the Claimant respectfully submits that the Def's Defence discloses no reasonable grounds for defending the Claim and that the Def's Defence be dismissed and there be Judgment for the Claimant against the Def pursuant to CPR 24.2 (a)(ii) and (b) ......The Defendant's attention is drawn to CPR 24.5 (1) which provides that if the respondent to an application for the summary Judgment wishes to rely on written evidence at the hearing, she must -

(a) file the witness evidence and

(b) serve copies on every other party to the application at lest 7 days before the summary Judgment hearing’

They also enclose ‘Reply to Defence’ ( more later on that)

 

I am in serious need of advice as to how to respond! How much time do I have?

 

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The chronology of documents/events from the beginning is as follows:

 

A Claim from Natwest/Incasso Solicitors states POCS: The claimants claim is in respect of monies due pursuant to an account maintained with the claimant. And the claimant claims £XXXXXX

 

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I file a Defence:

 

1. I, XXXXXX, am the defendant in this action and make the following statement as my defence to the claim made by Bank PLC

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.

 

5. The defendant avers that the contractual basis of any arrangement with the claimant is not stated and that the particulars of claim do not give any lawful cause of action. Consequently the defendant proposes that the court consider striking the claim in accordance with Cpr 3.4.2(a).

 

6. The alleged account is a regulated debtor/creditor agreement as defined in sections 8 and 13 of the CCA and is running account credit as defined under section 10 of the CCA, Coutts v Sebastyen:

 

Coutts v Sebastyen

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

The defendant puts the claimant to strict proof of the contractual basis of this account in accordance with the determination of the Director of the OFT dated 1st February 1990.

 

7. The regulated agreement was not defaulted in accordance with section 87/88, as amended in 1983, or at all.

 

8. The defendant avers that without a valid default notice under section 87(1) in the format prescribed in section 88 then the claimant was not entitled to terminate the agreement.

 

9. The agreement was unlawfully rescinded at the time of termination under sections 76/98 and as such there can be no lawful cause of action.

 

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I receive a letter from Cobbetts notifying me of a change of solicitor.

 

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I receive a letter from Cobbetts , ‘We note from your Defence that you make reference to the CCA 1974.....We confirm that a Current Account is not governed by the CCA and we therefore write to request that this part of your Defence is withdrawn.’

 

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I receive an Order from the Court:

1. Unless the Claimant do by XXXX file and serve a fully pleaded claim, claim do stand struck out;

2. If the Claimant complies with paragraph 1 defendant do file ad serve and (sic) defence by XXXX

3. Claimant do pay the Defendant costs of the amendment and the amended defence if any.

 

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Cobbetts Solcitors filed this Amended Particulars of Claim:

 

1. For the avoidance of doubt, pursuant of the Order of ……., these POCs replace in their entirety the Particualrs set out in the Claim Form

2. The Claimant is and was at material times a plc……

3. At all material times, pursuant to a contract constituted by the banker-customer relationship, the Defendant, XXXXXX, held an Advantage Private acc’t with the Claimant of which details are as follows:

3.1 Account number XXX and sort code XXXXX (“the Current Account”)

4. The Claimant will say that at the time of issue the sum owed under the Current Acc’t was XXXXXXX

5. attached hereto are bank statements…….

6.. the Claimant will seek to rely on the T&Cs that govern the Current Acc’t, in particular, the following sections

6.1 section 6.5.2 'If we have a valid reason for doing so, we may give you personal notice withdrawing your right to OD your acc't, or demanding repayment of your OD, or both. Our notice will normally take effect after a period of not less than 30 days, but it may take effects immediately if:

a, you have broken ay term of the contract between you and us; or

b, we have reasonable grounds to suspect fraudulent activity; or

c, as a result of the way you operate your acc't or, of your financial circumstances, we have reasonable grounds to believe that you ma difficulty in meeting your commitments.

If we demand repayment of your OD, you must immediately stop making withdrawals or payments of any kind on your acc't and must repay the full amt. of your OD ASA our notice takes effect

6.2 Section 6.6.3, You will also be responsible for paying any costs reasonably incurred by us in connection with your OD. These will includes (but not be limited to) costs of...© taking steps, including court action, to obtain payment

6.3 Section 8.1.1 You are responsible for payment of any debt that arises on your account.

7. A copy of the T&Cs are attached…

8. On ------------ the Claimant issued a DN in respect of the Current Acc’t and a copy of the DN is attached hereto

 

_______________________________________________________________

 

I file an Amended Defence (with much credit to Andyorch, Car and Magda!):

 

1. I, XXXXXX am the Defendant in this action and make the following statement as my amended defence to the claim made by National Westminster Bank PLC. I am a litigant in person and I make this statement from my own knowledge and experience.

 

2. It is admitted that I had banking facilities with the Claimant for over ten years. An overdraft arrangement was offered and available. Without prior consultation or forewarning the Claimant tried to pressure me into accepting a personal loan on the expiration of the alleged Overdraft which they were fully aware that I could not afford to repay.

 

3. In regard to the Claimant’s amended particulars, they fail to comply with the Civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim. Additionally, in paragraph 8, the Claimant seeks to rely on a Default Notice referring to a personal loan that does not apply to the alleged Overdraft account. The Claimant also seeks to rely on Terms and Conditions dated 1 January 2010 that were not applicable to the alleged Overdraft, either at its inception or expiration.

 

4.The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed. The defendant calculates that, during the life of the alleged Overdraft, £XXXXX in unfair charges and £XXXXXin interest has been debited from the account. Unfair charges are punitive at common law and I put the Claimant to strict disclosure to justify their charges. No admissions are made by the Defendant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Claimant to levy these charges. If the Claimant is able to establish that the contract did contain such terms, the Defendant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

 

5. The Defendant avers that the contractual basis of any arrangement with the claimant is not stated and that the particulars of claim do not give any lawful cause of action. Consequently the Defendant proposes that the court consider striking the claim in accordance with Cpr 3.4.2(a).

 

6. The Claimant has failed to supply any originally executed documentation relating to the overdraft agreement as requested by the Defendant.

 

7. The Defendant believes that it will form part of the Claimant’s Defence to this Claim that this agreement is not a regulated agreement under the CCA 1974. The Defendant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination -

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section

74(3) of the Act. I set it out in full:

 

1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

nd this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

8. The Defendant avers, therefore, that the Claimant is in default of the Defendant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

 

9. The Claimant has failed to provide a document that complies with this request. Accordingly, the Claimant is “in default” under s.78(6) and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant has also committed an offence under s.78(6)(a) CCA 1974.

 

10. The Defendant, therefore, puts the Claimant to strict proof of;

10.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

10.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

10.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

11. The Defendant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Claimant is not entitled to rely on that default or termination in defaulting the Defendant.

 

12. As there is no credit agreement provided that complies with the Act, the Claimant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

13. The behaviour of the Claimant in bringing these proceedings is entirely vexatious. The Claimant made vigorous attempts to force me into taking a personal loan whilst fully aware that I would not be able to service said loan payments. I reiterated my position on a number of occasions yet the Claimant maintained a take it or leave it attitude and refused to discuss alternative arrangements. The situation has caused me much distress and inconvenience and continues to do so.

 

_______________________________________________________________

 

Today, I receive an Application Notice from Cobbetts, as detailed at the top of this post, requesting my Defence is struck out, etc.

 

They also enclose a Reply to Defence, here are the edited highlights (I will type them in their entirety tomorrow):

 

I admitted I had a banking facility with NatWest and have statements, etc, so no written agreement is needed

 

The Claimant issued a DN on the defaulted Loan Acc't. The Claimant CONFIRMS THAT WHEN A CUSTOMER DEFAULTS ON ANY ONE ACC'T DEMAND FOR PAYMENT OF ALL ACCTS WITH ANY OUTSTANDING BALANCES ARE MADE. ON THAT BASIS, THE CLAIMANT ISSUED A DN IN RESPECT OF THE DEFAULT ON THE LOAN ACCT AND AS THE CURRENT ACCT HAD AN OUTSTANDING BLANCE A DN WAS ALSO ISSUED ON THAT ACC'T.

 

The Claimant confirms that the T&Cs attached to the APOC are the T&Cs (current ones)which govern the Current Acct. The Claimant confirms the Defendant opened the Current Acct in 1999 and since this date the Claimant has updated these T&Cs....blah blah blah - it goes into detail about interest and charges

 

Claimant will say that the Def requested an OD of XXXXX on XXXXXX by way of telephone and a month later an OD arrangement fee of £320 was deducted. Attached is the application form with screen printing providing that the OD limit on the CA was XXXXXXX. (I will check but the OD fee on the alleged proposal form is £660)

 

Current Acct is not a regulated agreement - statements and T&Cs, etc.

 

It is admitted there is no requirement to send a DN in respect of outstanding monies due on a Current Acc't. However, a DN was issued following a default on payments on the Loan Acct. The Claimant will say that any such agreement is excluded from Part V of the CCA 1974 pursuant to S.74(1)(b)

 

A Formal Demand for payment was sent to the Def on XXXXX. The Claimant confirms that the Formal Demand is automatically generated from the Claimants Case Management System and therefore copies are not retained (This is a complete fabrication. I have a comprehensive file of EVERY doc sent to me and I’ve never seen this before).

 

Attached are screen prints from the CCMS which illustrates the FD was issued on XXXX together with the Claimants template FD.

 

The Claimant denies that bringing the Claim is vexatious and that the Def was forced into taking out a Personal Loan'

 

I must pick through the attachments (size of a telephone book) but I notice that they include a letter from me to my bank manager, updating her on my financial situation and ending with 'I just don't think I could manage additional monthly or quarterly outgoings from a new loan. I do realise that it may be a more practical and cost effective solution to an OD but, given my current circumstances, I don't see how I can commit to a loan. '

[MAGDA]

Hi Martel, meant to ask you, did you ever work out how much the 'unlawful' charges + interest amounted to? I know things changed following the Supreme court ruling, but you could still go down the unfair route with it and I believe there are still ways to claim using the new amended POC that have been posted up on some sites - not sure if there are any on here or not?

 

Magda

[AndyOrch]

Hi Martel

 

Not disowned you still chewing the above over.Looks like they are going for Summary Judgment.In the meantime as this as come from Cobblers you need to check with the Court that it as been submitted and legit.

get back to you later

 

Regards

 

Andy

[Martel]

Hi Andy,

 

Great to hear from you - hope you had a good break!

 

I am about to type up the Reply to Defence (sorry, never seem to be able to scan onto posts but could scan and email you?) to post here

 

I will call the court tomorrow to confirm these docs have arrived.

 

Huge thanks!!

 

MX

[Martel]

Hi Martel, meant to ask you, did you ever work out how much the 'unlawful' charges + interest amounted to? I know things changed following the Supreme court ruling, but you could still go down the unfair route with it and I believe there are still ways to claim using the new amended POC that have been posted up on some sites - not sure if there are any on here or not?

 

Magda

 

Hi Magda,

 

Over the life of the account, I've calculated £8,000 in charges and £15,000 in terest.

 

MX

[AndyOrch]

Hi Martel

 

The above is the Claimants Witness Statement in support of their application for Summary Judgment . Yes?

[MAGDA]

Hi Magda,

 

Over the life of the account, I've calculated £8,000 in charges and £15,000 in terest.

 

MX

 

Yes, that's quite a bit then isn't it? something to keep on the back burner anyway. glad to see Andy is helping you!

 

Magda

[Martel]

Hi Martel

 

The above is the Claimants Witness Statement in support of their application for Summary Judgment . Yes?

 

Andy,

 

Here's the Application:

 

Today I received an application notice from Cobbetts, asking the Court to strike out my Defence and make a judgment in favour of Natwest 'pursuant to CPR 3.4 (2) (a) (ii) and (b) as the Defendant has no real prospect of successfully defending the Claim and there is no other compelling reason why the case should be disposed of at trial.'

 

They then suggest a 30 minute hearing.

 

Their 'evidence' is:

.......2. the Claimant submits that the Def's Defence by struck out and there be Judgment for the Claim Pursuant to CPR 3.4 (2) (a) the Claimant respectfully submits that the Def's Defence discloses no reasonable grounds for defending the Claim and that the Def's Defence be dismissed and there be Judgment for the Claimant against the Def pursuant to CPR 24.2 (a)(ii) and (b) ......The Defendant's attention is drawn to CPR 24.5 (1) which provides that if the respondent to an application for the summary Judgment wishes to rely on written evidence at the hearing, she must -

(a) file the witness evidence and

(b) serve copies on every other party to the application at lest 7 days before the summary Judgment hearing’

 

 

I'm about a third the way through typing up Cobbetts' 'Reply to Defence'. I can post up what I have so far or post the whole thing later.

 

 

MXX

[Martel]

For easier reference, here is my Amended Defence (with much credit to Andyorch, Car and Magda!) (Cobbett's Reply to tis Defence is below this)

 

1. I, XXXXXX am the Defendant in this action and make the following statement as my amended defence to the claim made by National Westminster Bank PLC. I am a litigant in person and I make this statement from my own knowledge and experience.

 

2. It is admitted that I had banking facilities with the Claimant for over ten years. An overdraft arrangement was offered and available. Without prior consultation or forewarning the Claimant tried to pressure me into accepting a personal loan on the expiration of the alleged Overdraft which they were fully aware that I could not afford to repay.

 

3. In regard to the Claimant’s amended particulars, they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim. Additionally, in paragraph 8, the Claimant seeks to rely on a Default Notice referring to a personal loan that does not apply to the alleged Overdraft account. The Claimant also seeks to rely on terms and conditions dated 1 January 2010 that were not applicable to the alleged Overdraft, either at its inception or expiration.

 

4.The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed. The defendant calculates that, during the life of the alleged Overdraft, £XXXXX in unfair charges and £XXXXXin interest has been debited from the account. unfair charges are punitive at common law and I put the Claimant to strict disclosure to justify their charges. No admissions are made by the Defendant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Claimant to levy these charges. If the Claimant is able to establish that the contract did contain such terms, the Defendant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

 

5. The Defendant avers that the contractual basis of any arrangement with the claimant is not stated and that the particulars of claim do not give any lawful cause of action. Consequently the Defendant proposes that the court consider striking the claim in accordance with Cpr 3.4.2(a).

 

6. The Claimant has failed to supply any originally executed documentation relating to the overdraft agreement as requested by the Defendant.

 

7. The Defendant believes that it will form part of the Claimant’s Defence to this Claim that this agreement is not a regulated agreement under the CCA 1974. The Defendant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination -

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section

74(3) of the Act. I set it out in full:

 

1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

nd this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

8. The Defendant avers, therefore, that the Claimant is in default of the Defendant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

 

9. The Claimant has failed to provide a document that complies with this request. Accordingly, the Claimant is “in default” under s.78(6) and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant has also committed an offence under s.78(6)(a) CCA 1974.

 

10. The Defendant, therefore, puts the Claimant to strict proof of;

10.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

10.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

10.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

11. The Defendant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Claimant is not entitled to rely on that default or termination in defaulting the Defendant.

 

12. As there is no credit agreement provided that complies with the Act, the Claimant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

13. The behaviour of the Claimant in bringing these proceedings is entirely vexatious. The Claimant made vigorous attempts to force me into taking a personal loan whilst fully aware that I would not be able to service said loan payments. I reiterated my position on a number of occasions yet the Claimant maintained a take it or leave it attitude and refused to discuss alternative arrangements. The situation has caused me much distress and inconvenience and continues to do so.

 

_________________________ _________________________ _____________

 

Cobbetts Reply to the above Defence:

 

1. Unless otherwise stated, reference to para numbers in this Reply are to the appropriate paras of the Defence

2. This Reply to Defence is filed and served WP to the right of the Claimant to apply for summary judgment in respect of and/or to strike out the Defence.

3. Save as insofar as it consists of admission and save as otherwise pleaded to below, the Claimant joins issue with the Defendant upon his Defence.

4. For the avoidance of doubt, the Claim relates to one account the Defendant holds with the claimant of which details are as follows: XXXXXX

5. As to para 2, the first sentence is admitted. As to the second sentence, it is denied that the Defendant was pressured into accepting a personal loan upon the expiration of the OD facility. In any event, the Claim relates to outstanding monies due in respect of a Current Acct not a Loan Acct.

6. Para 3 is denied. The Claimant will say that no written agreement is in place. The Defendant has been provided with statement from xxxx to xxxx which show all credits and debits made on the acct and shows that the Acct has been fully operational for the last 7 yrs. In any event, the Defendant’s own admission, she has a banking facility and therefore the existence of the acct is not in dispute.

7. For the avoidance of doubt, the Claimant issued a DN following a Default on payments in respect of a Loan Acct the Defendant holds with the Claimant (“the Loan Acct”). the Claimant confirms that when a customer defaults on any one acct held, demand for payment of all accts with an (sic) outstanding balances are made. On that basis, the Claimant issued a DN is respect of the default on the Loan Acct and as the Current Acct had an outstanding balance a DN was also issued on that acct.

8. The Claimant confirms that the T&Cs attached to the APOC are the T&Cs which govern the Current Acct. The Claimant confirms the Defendant opened the Acct on XXX and since this date the Claimant has updated threes T&Cs. As per the Claimant’s standard practice, al customers are sent copies of any amendments/updated T&Cs. However, attached hereto are historic T&Cs which would have governed the Current Acct at the time the Acct was opened in XXXX.

9. Para 4 is denied, the Defendant has been provided with statements relating to the Current Acct which shows he accrual of debt together with al charges and interested (sic) applied to the acct.

10. The Claimant will say that interest and charges have been applied to the Current Acct in accordance with the T&Cs and specifically Section 6 applied to the Current Acct are in lie with the T&Cs and I refer to the following:

10.1 6.6 Interest, fees, charges and other costs

6.6.2 Interest and charges relating to ODs (whether arranged in advance or not) will be payable and will be calculated and charged in the manner and at the rates set out in Personal and Private Banking – A Guide to Fees and Interest and in any OD confirmation letter. Interest will be calculated on the daily cleared OD balance on your acct. (both before and after any judgment for payment)

6.6.4 We may debit your acct with any interest, fees, charges or other costs, even if this results in or increases an unarranged OD. If an unarranged OD arises in this way, we will not charge a Paid Referral Fee under General condition 6.3.5

11. A copy of the booklet Personal and Private Banking – A Guide to Fees and Interest is attached hereto. Section 6 illustrates when interest is applied to the Current Acct and at what rate:

11.1 6. Interest due on OD balances

Arranged ODs

1. Advantage Private, …..etc

If you have an arranged OD facility with us in advance and you se this facility within the thresholds shown below, you will not pay any interest. If the amt you OD under and arranged OD facility exceeds these thresholds, you will pay interest at the rates shown in the tables below on the OD balance – please note that this includes the part of the balance which is within any interest fee threshold that applies to your acct. However, we will not charge interest on any part of the OD balance which represents fees, charges or costs of the kind described below under the heading Sums which do not bear interest. If you have arranged an OD facility with us in advance under which you pay interest at a rate other than the rates shown in the tables below, the interest free thresholds will not apply to your acct.

Advantage Private, 1.06 Nominal monthly rate, 12.73 Nominal annual rate, 13.50 EAR variable. 18.49% EAR typical (variable)

Any amt OD without an arranged OD or in excess….will be charged at the rates…..1.06 Nominal monthly rate, 12.73 Nominal Annual rate, EAR% Typical (variable) 13.50………..

Sums which do not bear interest…which represents – A DN Fee or other sum (apart from interest)) you must pay us in connection with a breach of your obligations….or – a Maintenance Charge, Paid Referral Fee, Guaranteed Card Payment or Unpaid Item Fee

12. Para 5 is denied, there is no written agreement and the Claimant repeats para 6 above.

13. As to para 6, the Claimant will say that the Defendant requested an OD facility of XXXX on XXXXX y ay of a telephone application ad on XXXX an OD fee of XXX was debited from the Current Acct as evidenced on the statements. Attached hereto is a copy of the Application form together with screen print providing that the OD limit on the Current Acct was XXXX.

14. As to para 7, the Claimant will say that there is no written or executed agreement in respect of the Current Account or OD. Para 13 above is repeated.

15. Para 8 & 9 are denied. The Current Acc’t is not a regulated agreement. In any event, the Defendant has been provided with the Statements together with the T&Cs which govern the Current Acct.

16. As to para 11, the Claimant repeats para 7 above ad refers to Section 6.1 of the APOC

17. As to para 11, the Claimant repeats para 7 above and refers to Section 6.1 of the APOC

18. As to para 12, it is admitted that there is no requirement to send a DN in respect of outstanding monies due on a Current Acct. However, a DN was issued following a default on payments to the Loan Acct. In any event, the Claimant will say that any such agreement is excluded from Part V of the CCA 1974 pursunat to S.74(1)(b)

19. In any event a Formal Demand for payment was sent to the Defendant on XXX. The Claimant confirms that the Formal Demand is automatically generated from the Claimants Case Management System and therefore copies are not retained.

20. Attached hereto are screen prints from the Claimant’s Case Management System which illustrates that the Formal Demand was issued on XXXX together with a copy of the Claimant’s template Formal Demand.

21. The Formal Demand would have been sent to XXXXX which was the Defendant’s address at the time of serving the Formal Demand

22. As to para 13, the Claimant denies bringing the claim is vexatious and that the Defendant was forced into taking out a Personal Loan

[AndyOrch]

What date is the SJ Hearing Martel ?

 

Regards

 

Andy

[Martel]

What date is the SJ Hearing Martel ?

 

Regards

 

Andy

 

I've not had a Notice from the Court, only a copy of the Application Notice sent to me by Cobbetts.

 

I assume the Court will notify me?

 

MX

[AndyOrch]

Yes thats why I said to check with your CC to make sure they have filed.We need the date if they have, and the Court should write an order to you, to allow time to submit your WS.

 

Andy

[Martel]

Yes, will do. My court is total Fawlty Towers but I'll see what I can find out.

 

What's the usual time frame? 4 weeks?

 

I have some comments to make on Cobbetts' Reply to Defence but first have to pick through my file. Will do so ASA i can.

 

thanks for all your help.

 

MX

[AndyOrch]

Yes, will do. My court is total Fawlty Towers but I'll see what I can find out.

 

What's the usual time frame? 4 weeks?

 

I have some comments to make on Cobbetts' Reply to Defence but first have to pick through my file. Will do so ASA i can.

 

thanks for all your help.

 

MX

 

Thats why you need to check normally the AN comes from the Court with the Orders attached and time frame.They may be trying to short change you and hope you submit your WS too late.

 

Andy

[Martel]

Thats why you need to check normally the AN comes from the Court with the Orders attached and time frame.They may be trying to short change you and hope you submit your WS too late.

 

Andy

 

Cobbetts' letter is dated 24/5, as is their AN. Their covering letter says 'we can confirm we have today filed the same with......Court

 

As it says at the end of the AN's 'evidence box':

 

"The Defendant's attention is drawn to CPR 24.5 (1) which provides that if the respondent to an application for the summary Judgment wishes to rely on written evidence at the hearing, she must -

(a) file the witness evidence and

(b) serve copies on every other party to the application at least 7 days before the summary Judgment hearing"

 

I'll let you know tomorrow as soon as I speak to the Court.....

 

Many thanks!

 

MX