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

[AndyOrch]

Hiya,

 

The DN refers to the Loan account, not the OD. Or maybe that's the point you're making and I'm being stupid.

 

MXX

 

Precisely they have not issued litigation against the Loan:rolleyes:

[AndyOrch]

WS Witness Statement Disclosure N265 (your next stage).

 

Ok Martel

 

I think we need to be realistic,you must submit an amended defence with the opening paragraph " It is admitted that we once held a Current Account with the Claimant and then flow into the story as to why you are where you are today.No legal put it in your words.I dont wish to pour scorne but this really is a case of damage limitation now.yes the unfair charges which you will plead and yea irresponsible lending.IMHO I would hope to come out of this with an agreement set by the DJ that is an affordable payment plan(might not be to the Claimant) but hey tou che.

Would appear that Cobbers have got the bit between their teeth and if they will go to the length of submitting an extensive P.O.C then they arnt going to back down,and in Fast Track you run the risk of adding another load to the debt..Your thoughts?

 

 

Regards

 

Andy

Edited April 23, 2010 by Andyorch

[Martel]

WS Witness Statement Disclosure N265 (your next stage).

 

Ok Martel

 

I think we need to be realistic,you must submit an amended defence with the opening paragraph " It is admitted that we once held a Current Account with the Claimant and then flow into the story as to why you are where you are today.No legal put it in your words.I dont wish to pour scorne but this really is a case of damage limitation now.yes the unfair charges which you will plead and yea irresponsible lending.IMHO I would hope to come out of this with an agreement set by the DJ that is an affordable payment plan(might not be to the Claimant) but hey tou che.

Would appear that Cobbers have got the bit between their teeth and if they will go to the length of submitting an extensive P.O.C then they arnt going to back down,and in Fast Track you run the risk of adding another load to the debt..Your thoughts?

 

 

Regards

 

Andy

 

Hi Andy,

 

Thanks for your considered post.

 

Just a few questions - am assuming that I don't have a good enough argument based on the docs to plead a watertight or even a decent defence, hence your advice to admit the debt? Is this common? Will this weaken my negotiating position when negotiating a payment plan - which, I assume is where this is all heading? Does the amount of interest come into play here? Others that have been in my position have come to an agreement pre Court. It's all a little tricky for me as I don't have an income to bargain with.

 

I realise that the Amended POCs are more extensive, but I am puzzled by their wrong DN, no mention of attached TN in the POC and reliance on T&Cs that don't relate to the actual OD, which was a year earlier.

 

You're the expert and I will certainly take your advice here. Oh, and what's the (presumably less expensive) alternative to Fast Track?

 

Enormous thanks for all your help - especially on a Friday night!!

 

Best,

Martel

[AndyOrch]

Hi Andy,

 

Thanks for your considered post.

 

Just a few questions - am assuming that I don't have a good enough argument based on the docs to plead a watertight or even a decent defence, hence your advice to admit the debt? Is this common? Will this weaken my negotiating position when negotiating a payment plan - which, I assume is where this is all heading? Does the amount of interest come into play here? Others that have been in my position have come to an agreement pre Court. It's all a little tricky for me as I don't have an income to bargain with.

 

I realise that the Amended POCs are more extensive, but I am puzzled by their wrong DN, no mention of attached TN in the POC and reliance on T&Cs that don't relate to the actual OD, which was a year earlier.

 

You're the expert and I will certainly take your advice here. Oh, and what's the (presumably less expensive) alternative to Fast Track?

 

Enormous thanks for all your help - especially on a Friday night!!

 

Best,

Martel

 

Believe me Martel and my posts will back it up Im the last to throw the towel in and im not implying that you should.Yes there is a lot of faults with the way they have conducted the termination of said account. If you feel that your argument is not strong enough then you head for the next position and that is to drive them into a corner were a,they will come to an agreement ie Tomlin just before trial or you go the full distance and rely on getting a decent DJ who will fall on your side.The risk with option 2 is the amount involved will guarantee fast Track no question.

Its not a case of you giving in or showing any weakness on your part,if they think you will go the full course and you can imply it by the submission of your second defence then they will not want to go full either.Court appearances cost money time and Barristers are not cheap.

Do you think that you can go to trial and convince a DJ that the debt is not yours? No but you can admit it and raise the unfair charges and the interest and how they tried to force you to take even more debt on to secure their irresponsible lending.

I can usually get a taste of a case within the first 10 posts of a thread and IMHO that is the approach i would be taking but I would also be arguing the above points and only be prepared to pay what I could realistically afford and what I honestly owed to the debt and settle for nothing less.

So by submitting an amended defence admitting the debt is not necessarily submitting to defeat but when its an overdraft of the amount in question I would be looking to reduce it to its true fair figure and if you get the a good DJ on the day Im sure he would have to agree, providing you are honest in your plea.

 

Andy

[Martel]

Hi Andy,

 

Yes, I know you take no prisoners and I really admire that.

 

Thanks for reasoning this out for me - I agree and would love to proceed with your strategy. My concern re Tomlin is that I really don't have much to bargain with.

 

Should I draw up an opening para as you suggested - how much detail? Or keep it unsentimental, e.g. 'I had been with the bank for over ten YEARS and always had an overdraft that I serviced. Suddenly, in XXXX, I was told I HAD to convert it into a loan I could clearly not afford - as anyone could tell by studying the history of my account. The Bank attempted to force me to take one of two loans, whilst knowing full well I couldn't afford the monthly repayments of either loan (£850 or £1200 per month) . I was surprised by the take it or leave attitude of the Bank and the pressure I felt to convert the OD to a personal loan. I explained all this to my Bank Manager but the Bank kept insisting on a loan. The Bank's bullying forced me to do what was necessary to survive. In the end, I had to walk away from the Bank as I couldn't afford the loan that was being forced on me and I couldn't afford to have my income swallowed up by the expired OD. As evidenced by the £8,000 in charges and $15,000 in interest paid over the years, I clearly felt loyal to the Bank. My loyalty was repaid by trying to intimidate me into taking out a loan they clearly knew I could not afford. The Bank betrayed me and compounded that betrayal with excessive charges and interest. '

 

I'll keep working on it if you feel it's the right direction.

 

Not sure what your schedule is like.....I will take your lead on all this.

 

And, sorry to sound like a broken record but endless thanks,

 

MXXX

[AndyOrch]

Take your original defence and use that style,keep it formal.

 

I xxxxxxxx am the defendant in this case and 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(us|) into accepting a personal loans which they were fully aware that we could not afford to repay.........Always refer to them as the Claimant

 

Now a section on their amended PoC and the inclusion of a DN referring to a personal loan which as nothing to to with any alleged Overdraft.

 

Now a section on unfair charges and interest applied

 

 

Now a section on unlawful termination (check your dates was you allowed to come to some agreement did it allow you 14 days?

 

Then your conclusion.

 

Im afraid i will be out of the UK from Sunday morning Martel so if you would like me to check it through you need to have a draft up by the latest Saturday evening.Take a look through my posts and the style of defences that i write if you are struggling

 

Regards

 

Andy

Edited April 23, 2010 by Andyorch

[AndyOrch]

Joint account, claim issued, Help page 6 may be of help

 

 

Andy

[Martel]

Andy, you are amazing. I will draft something tomorrow and post it up.

 

i may have a question or two about the conclusion.

 

HUGE thanks, MX

[Martel]

Joint account, claim issued, Help page 6 may be of help

 

 

Andy

 

Hi Andy,

 

Thanks, am looking at it and will try to adapt it. Mine is not a joint account. I did it all on my own!!

 

MX

[Martel]

Take your original defence and use that style,keep it formal.

 

 

 

Hi Andy,

 

Am having difficulty determining the TN.

 

Is it:

 

10/12/08 Notice served under Sections 76(1) and 98(1) of the CCA 1974 re the OD. It advises me they will terminate the OD on 31/12/08 unless ‘you make an alternative arrangement for repayment’ (not referred to in the Amended POCs but attached to them) - if this it the TN, then they've given me 21 days, not just 14 days, to comply

 

OR IS IT

 

 

15/01/09 This is an Important Letter…..about the OD AND the Loan acc’t. ‘if you do not respond to the letter in 8 days we will have no alternative other than to consider legal action……this letter constitutes formal demand for the repayment of all sums…..(this is an original, no copy sent to me by the Bank or the solicitors).

 

?

 

MX

[Martel]

Hi Andy,

 

Not sure this rough draft looks all that 'official', if you know what I mean. I'm confused whether the CCA comes into this anywhere or are those references now history?

 

Apologies for not being able to get to grips with this.

 

Best,

Martel

 

 

 

Amended Defence

 

I ______ of _______ am the defendant in this action and make the following statement as my amended defence to the claim made by Bank PLC

 

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 which they were fully aware that I could not afford to repay on the expiration of the alleged Overdraft

 

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 (AM I ABANDONING A REQUEST FOR A DN ON THE OD?) 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.

 

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).

 

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, £8,000 in unfair charges and £15,000 in interest has been debited from the account.

 

THE TN – NOT SURE ABOUT UNALWFUL TERMINATION. THE OD EXPIRED 30/9/08. AM NOT SURE WHICH DOC IS THE TN:

 

10/12/08 Notice served under Sections 76(1) and 98(1) of the CCA 1974 re the OD. It advises me they will terminate the OD on 31/12/08 unless ‘you make an alternative arrangement for repayment’ (not referred to in the Amended POCs but attached to them) - if this it the TN, then they've given me 21 days, not just 14 days, to comply

 

OR IS IT

 

 

15/01/09 This is an Important Letter…..about the OD AND the Loan acc’t. ‘if you do not respond to the letter in 8 days we will have no alternative other than to consider legal action……this letter constitutes formal demand for the repayment of all sums…..(this is an original, no copy sent to me by the Bank or the solicitors).

 

CONCLUSION. I'm struggling here

[Martel]

Extracting this from your post in the thread you mentioned above, I wonder if this could be the basis of my 'conclusion'?

 

Notwithstanding the matters pleaded above, the claimant must under section 87(1)also sections 76(1) and 98(1) of the CCA 1974 serve a default notice / Termination Notice before they can demand payment under a regulated credit agreement

 

It is neither admitted or denied that any Default Notice/Termination Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. In respect of the figures claimed, it is averred that the sums claimed contain charges which are unfair within the meaning given in the Unfair Terms in Consumer Contract Regulations 1999 and it is further averred that the charges levied are punitive in nature and are penalty charges

The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with credit reference agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999

 

 

Regarding that which is denied, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -[/font]

(a) That the statement of case discloses no reasonable grounds for bringing or defending

 

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

 

If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx[/font

Consumer Credit Act 1974 is the relevant act in this case.

 

Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. It is therefore averred that this claim is brought in relation to a personal loan & overdraft which is credit as defined within the Consumer Credit Act 1974, the defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons

[Martel]

Hi Magda,

 

What do you think of the rough draft? I'm in a muddle as i don't know if the TN is problematic, if I'm still referring to the CCA anywhere or how to present the conclusion.

 

AND I have to go out shortly....guess I can check in on my friend's computer (I don't know why but I can't access CAG on my Blackberry). Hope not to be too late!

 

MX

[AndyOrch]

Hi Martel I trust you slept well

 

Thats fine, now you are getting the hang of Defence writing.

Ok apologies if i have confused you re Invalid termination.Credit card and loan Termination are completly different to OD.Ie an invalid Termination is governed by the DN but in your case there is no DN only a Sec 76(1) 98(1) so if this allows 14 (plus service) days to come to some arrangement,payment plan then the OD has not been unlawfully Terminated.Termination really is the wrong word for your case Martel lets call it ( recall or forclose).So I would advocate steering clear unless you have not been allowed the appropiate time to rectify.

Otherwise excellent.

 

Ok for now Martel?

 

Regards

 

Andy

Edited April 24, 2010 by Andyorch

[MAGDA]

Hi Martel, I see Andy has answered your query, so that's ok. Glad you are getting the benefit of his wisdom and hopefully you'll have your amended defence sorted now in time to go off on Monday.

 

regards, Magda

 

PS: didn't want to 'butt in' earlier as thought I would give Andy time to reply, as he has a lot of experience dealing with this kind of thing. Glad you are getting on well with it all!

Edited April 24, 2010 by MAGDA

[Martel]

Hi Martel I trust you slept well

 

Thats fine, now you are getting the hang of Defence writing.

Ok apologies if i have confused you re Invalid termination.Credit card and loan Termination are completly different to OD.Ie an invalid Termination is governed by the DN but in your case there is no DN only a Sec 76(1) 98(1) so if this allows 14 (plus service) days to come to some arrangement,payment plan then the OD has not been unlawfully Terminated.Termination really is the wrong word for your case Martel lets call it ( recall or forclose).So I would advocate steering clear unless you have not been allowed the appropiate time to rectify.

Otherwise excellent.

 

Ok for now Martel?

 

Regards

 

 

Hi Andy!!

 

thanks for that......i am at a friend's not my computer soooo......do you mean i should leave the TN out completely? and am assuming the CCA is off the table now.

 

Also, how best to put forward a 'conclusion'? i'd love to keep the defence as strong as poss

 

sorry, i know you're getting things to gether to go away - i really appreciate all your help!

 

Best

MartelXXxx

[Martel]

Hi Martel, I see Andy has answered your query, so that's ok. Glad you are getting the benefit of his wisdom and hopefully you'll have your amended defence sorted now in time to go off on Monday.

 

regards, Magda

 

PS: didn't want to 'butt in' earlier as thought I would give Andy time to reply, as he has a lot of experience dealing with this kind of thing. Glad you are getting on well with it all!

 

Thanks so much Magda

 

mxxxx

[AndyOrch]

Hi Martel

 

If the Sec 76 dates comply ie date of the letter plus 3 days service plus 14 before Termination then we cant argue that point,they have Terminated correctly, unfairly yes but legally correct.

With regards to your conclusion im of the view that you should be strenuously making point of the vexatious behavior of the Claimant in bringing these proceedings and their vigorous attempts to force you into taking personal loans in attempt to shift an unsecured debt into a secured debt irrespective of its advantages to you the customer or you ability to be able to service said secured payments.Outline your attempts to be amicable in this matter and agree some kind of realistic payment plan.

Notwithstanding the above points etc etc unfair charges which are punitive at common law and that you put them to strict disclosure to justify their charges.

 

You will have to beef it up a little

Martel but that the basics of your closing conclusion

 

Regards

 

Andy

[Martel]

Andy,

 

Endless and heartfelt thanks for all your support and advice....hope you have a fabulous trip!!

 

Best,

MXXX

[Martel]

Hi Martel, I see Andy has answered your query, so that's ok. Glad you are getting the benefit of his wisdom and hopefully you'll have your amended defence sorted now in time to go off on Monday.

 

regards, Magda

 

PS: didn't want to 'butt in' earlier as thought I would give Andy time to reply, as he has a lot of experience dealing with this kind of thing. Glad you are getting on well with it all!

 

Hi Magda,

 

Wondering if I could ask you about the TN and timing? It's dated 10/12/08, giving me until 31/12/08 to come to an arrangement. Does the 14 day time periodonly BUSINESS days? Or does it include holidays and Sundays?

 

I'm asking because, if I deduct Sundays, Xmas and Boxing day, the amount of time is only 11 days, not 14.

 

thanks!

 

MX

[MAGDA]

Hi Martel, I know with a DN it doesn't include bank holidays, weekends etc, but not sure with a TN, - will try to find out for you and will post something up if I can (if you haven't already found out the answer elsewhere).

 

How is the defence coming along - hope it's all starting to come together.

 

regards, Magda

[Martel]

Hi Magda!

 

Thanks for your reply!! I've been searching all day for the answer re the TN timeframe to remedy - no luck!! It probably is the same as a DN but who knows?

 

I'm confused as to Andy's reluctance to invoke the CCA in the Defence.....hmmmm.......does an 'admission' to the OD preclude the inclusion of CCA references?

 

MX

[Martel]

re the above post and the CCA re ODs -

 

meant to add, especially as I've reread Car's thread and my own original Defence,

MXX

[MAGDA]

Hi Martel, really not sure about the 14 days: whether or not it can include bank holidays for example - obviously, with a DN it can't. Not sure if the TN is the same though - might be worth seeing if Andy/Car are around to answer that one, although I think Andy is unavailable now isn't he?

 

Best wishes,

 

Magda

[Martel]

Hi Magda,

 

Thanks for your post. For what it's worth, I just spoke with someone at the OFT who said the period is defined as 'calendar' days. I wonder if there's any mileage in suggesting the TN was 'unfair' rather than dfective as the 14 day period included 2 bank holidays and two Sundays? hmmmm.....maybe best to leave it out?

 

MX