Court While Waiting For Charges Refund

[Linian]

I requested a refund of bank charges in May and received the standard "all claims on hold" letter and stating that they would get back to me after the ruling.

 

Since then, they have issued an invalid default notice (exactly 14 days no post days) and then court proceedings after terminating the account (bank account with overdraft)

 

Are they allowed to issue court proceedings when a request for a refund has been submitted and acknowledged?

 

Also, although the OFT has backed down, can I still ask them to justify the charges which are obviously included in the sum demanded in their DN?

 

Thanks again for any input

[bazaar]

they can issue court proceedings any time they like, whether they win or not is another thing.

Can you scan the DN and the claim details ( MINUS ANY PERSONAL INFO AND NUMBERS ETC) then post them here, so people can look into this further.

You need to make sure you keep to the court timelines, so this is urgent. Was this filed via Northampton Bulk Center?

Stay calm, do not respond just yet until you get some help/ advice here

[Linian]

bazaar

 

I really appreciate the response. Must admit things are getting a little tense now.

 

I'm scanning docs now and will be straight back

 

Cheers!

[Linian]

bazaar - hope this has worked ok.

 

Actually, you've also responded to another thread of mine "Too late for 31.14?" so I'll keep everything on this thread if thats ok

 

1. Anyway, first thing first. As you can hopefully see, the DN is a straight 14 days (no post days) Actually, at first I thought I hadn't recieved one cos it was so long ago but this is the only one I have recieved. In fact I've asked for copy and proof of service in my defence anyway - but got nowt yet!

2. This came from Cardiff Court but now moved to local

 

I've got loads of questions but probably best to stick to one at a time eh?

 

Thanks again - appreciate your time.

Edited January 26, 2010 by Linian

[bazaar]

OK, they are small, but looking at them, you may have left personal info on them.

Try loading them up with photo bucket. Make sure they are clean from your personal info. IE photo copy them, the tippex out your personal stuff. then scan the doctored ones

[Linian]

Sorry - just seen the results so trying photo bucket now

[Linian]

Ok, how's this? (No personal info anywhere is there?)

 

http://i940.photobucket.com/albums/ad242/yursaduian/DN.jpg

 

http://i940.photobucket.com/albums/ad242/yursaduian/Termination.jpg

 

http://i940.photobucket.com/albums/ad242/yursaduian/POC.jpg

[bazaar]

OK, did you respond to this claim?

Online defence maybe?.

Again, scan or type up your response to the claim.

I'll highlight the thread to get more people looking in.

[Linian]

Bazaar

 

My defence has all personal references and details of letters sent etc.

 

Is there any way we can keep evrything secure?

[Linian]

Bazaar

 

Can I PM the docs to you please? (I've my defence and other info with AQ as PDFs)

[bazaar]

just type it on here minus your personal stuff, thatll help others help you as well.

Its never wise to PM stuff to anyone, although most here are willing to help, you never can be fully trusting.

[bazaar]

IE, on XXXXX date I sent letter stuff like that.

 

What time do you have left for hearing or what are the directions of the court?

[Linian]

OK, no easy way to do this is there?

 

I sent in the defence and then the Other info went in with my AQ

 

The hearing is 2 March and the court form states;

 

"Each party shall deliver to every other party and to the court office copies of all documents (including any experts report) on which he intends to rely at the hearing no later than 29 January 2010"

 

So deadline is Friday - I haven't had anything from them as yet

Defence.pdf

AQ other info.pdf

[bazaar]

OK, so I take it you sent copies to Eversheds of your defence and AQ?

If not you still have time to do so.

If its all youve sent to court, thats about it as far as I can see.

Its up to Nationwide and Eversheds to prove that they have a valid case.

Did you actually ask for statements etc, so you can compile a counterclaim?

Theres no harm in sending Nationwide an SAR to get this.

It is worth ringing the court, to see if theyve sent anything to court. if they have ask them for a copy and let them know that youve received nothing from Eversheds so far ( this is a normal trick, underhand yes, but normal)

[Linian]

So the questions are;

 

1. Is the DN valid?

2. Its an overdraft I know but they've defaulted using CCA 1974 so does any agreement need to be in the prescribed form? (bearing in mind that the court has told them to produce the original agreement at the hearing)

3. Is there an issue with ES demanding payment within 14 days but starting proceedings after only 12? (allowing for post - and even if I did tell them not to interfere)

4. I haven't asked for statements but have them anyway. What would I be counterclaiming for?

5. Is it too late to amend my defence if I want to counterclaim?

6. I haven't sent any copies to ES or NW, should I?

 

I've probably got more questions but you're probably fed up now anyway?

 

Thanks again for your time

[citizenB]

So the questions are;

 

1. Is the DN valid?

 

Well it doesnt allow the 14 days a Default notice should. Dated 19th February 2009, it gives you until 5th March to repay the overdraft in full.

 

19th was a Tuesday, depending on the method of posting ie 1st would be deemed delivered 2nd business day after posting (Thursday 21st) = 13 days.

 

If it were sent either 2nd or UK Mailing then that would be 4 business days (with the weekend in between) which would allow even less time.

 

However some judges are looking at this discrepancy as "de minims" issues

 

I am wondering whether the fact they have demanded the FULL amount of the overdraft, rather than just the bit that you were over the limit, would make it invalid. A default notice is used to request "arrears".

 

 

2. Its an overdraft I know but they've defaulted using CCA 1974 so does any agreement need to be in the prescribed form? (bearing in mind that the court has told them to produce the original agreement at the hearing)

 

Well now, if the court has ordered them to bring the original agreement to a hearing.. However, I think that a letter setting out the terms and condiitons etc, is usually all that is given and not a full blown agreement for an overdfaft

 

 

3. Is there an issue with ES demanding payment within 14 days but starting proceedings after only 12? (allowing for post - and even if I did tell them not to interfere)

 

I would say that you could argue this point. If they have written allowing a period of time for remedy, then the very least they should do is wait until that time is passed before taking the next step.

 

4. I haven't asked for statements but have them anyway. What would I be counterclaiming for?

 

Would you be counterclaiming for anything or just making certain the amount they are asking for is correct. I dont understand this question.

 

5. Is it too late to amend my defence if I want to counterclaim?

 

I think you are able to supplement a defence, but this would have to be done on an N244 and would cost you I believe around £75.00 + there would be a charge for the "value" you are claiming in the counterclaim.

 

6. I haven't sent any copies to ES or NW, should I?

 

I've probably got more questions but you're probably fed up now anyway?

 

Thanks again for your time

 

Have replied under your questions above.

 

Question 6. You should supply the court with extra copies to enable them to serve the defence. However, if you didnt then I would a) check with the court that they have sent copies to solicitors if not, then get a copy to them ASAP:D

 

Next question

[Linian]

Great help CitizenB, thanks

 

There's an excellent post by The Shadow which refers to the 'de minimis' issue. We'll copy a bit of that one in methinks but how do I find out more about the 'whole amount' issue? Or is it along the lines of the bank being able to withdraw an overdraft whenever it wants?

 

Re the agreement, does it not have to be signed by both parties and contain the prescribed terms to be valid if its under CCA? I've read 'The Determination' in another thread but still not sure if it has to be in prescribed form or not. Does the determination say it does or it doesn't? Any ideas?

 

If I did argue the point about ES demanding after 13 days, what would it achieve? Would the court tell them to go away and start again cos as the account has already been terminated what would they ask for?

 

The bit about having statements was in response to the question from Bazaar as to whether I had asked for statements to compile a counterclaim. Could I do that for the bank charges even now or, as they make up part of their claim, should I at least ask them to justify the charges in court?

 

Another point. I've just received in the last few days a letter from the bank telling me that my claim for charges refund is a dead duck. I am going to continue with that claim anyway but does that not confirm that the account was infact in dispute the whole time and as such should not be acted upon? Just a thought

[citizenB]

Great help CitizenB, thanks

 

There's an excellent post by The Shadow which refers to the 'de minimis' issue. We'll copy a bit of that one in methinks but how do I find out more about the 'whole amount' issue? Or is it along the lines of the bank being able to withdraw an overdraft whenever it wants?

 

Re the agreement, does it not have to be signed by both parties and contain the prescribed terms to be valid if its under CCA? I've read 'The Determination' in another thread but still not sure if it has to be in prescribed form or not. Does the determination say it does or it doesn't? Any ideas?

 

If I did argue the point about ES demanding after 13 days, what would it achieve? Would the court tell them to go away and start again cos as the account has already been terminated what would they ask for?

 

The bit about having statements was in response to the question from Bazaar as to whether I had asked for statements to compile a counterclaim. Could I do that for the bank charges even now or, as they make up part of their claim, should I at least ask them to justify the charges in court?

 

Another point. I've just received in the last few days a letter from the bank telling me that my claim for charges refund is a dead duck. I am going to continue with that claim anyway but does that not confirm that the account was infact in dispute the whole time and as such should not be acted upon? Just a thought

 

Yes, an agreement does need to be signed by both parties to be executed. However, I dont think that overdrafts fall under that banner in all respects.

 

It is my undertsanding that they agree verbally to an overdraft situation then write to you telling you what rates of interest will apply and how you have to maintain the account. I really dont know much about o/ds:(

 

I doubt very much that there will be mega benefits in arguing that ES jumped the gun on proceeding to litigation. However, it does show them in a bad light and certainly trigger happy.

 

As for the bank charges, the letter you received from the bank saying that there was no mileage in going forward may be a bit presumptious on their part.

 

The SC Judge did suggest other ways forward as per this letter I sent to my bank.

 

Other avenues are being explored and as yet amended POCs have not yet been produced.. but if you can find a reason why in your particular circumstances the overdraft charges were unfair then you could still force the bank to justify making them. Sadly, I would be unable to help you with that.

 

 

Letter to Bank

We are in receipt of your letter dated XX December 2009 which details your belief that the recent judgement by the Supreme Court in the OFT v you and seven others is an end to these matters, you are wrong.

 

Although the OFT effectively lost the “test case” the Chief Judge of the Supreme Court thought it important enough to say this ruling didn't stop people challenging fairness under 'Regulation 5' of the Unfair terms in Consumer Contracts Regulations, which the Supreme Court case did not cover.

 

In addition to this we believe section 140 of the Consumer Credit Act 1974, which again did not form any part of the “test case” also contains powerful arguments in relation to our claim against you.

 

We confirm following the judgement by the Supreme Court and in light of the above we are now amending the particulars of our claim and these will be submitted to the court shortly together with our request to have the stay set aside and our dispute listed for hearing.

We trust this clarifies the situation for you.

 

Yours faithfully

 

 

Edited January 26, 2010 by citizenB
removed formatting commands

[Linian]

OK - all makes sense.

 

Given that the bank has not as yet supplied one single document requested but also bearing in mind that the Court has instructed me (and them) to furnish docs to each other and the court by Friday and as I dont want to upset the DJ too much, unless someone has other ideas, I have 3 options;

 

1. Send copies of my all letters to all concerned (cos I've been told to and thats all I have as evidence anyway) and wait for the hearing in March to argue about everything

 

2. Send all my copy letters with a full blown defence but ask for permission to amend should Bank finally come through with docs (I'm thinking of the sticky by pt2537 who says quite sensibly that I cannot defend what I haven't seen)

 

3. Do not send docs to court but instead ask the court to issue an 'unless' order to the bank - but would this upset the DJ cos I haven't forwarded my docs to court by the specified date?

 

Any thoughts please?

 

Last lap I think - almost there

[citizenB]

OK - all makes sense.

 

Given that the bank has not as yet supplied one single document requested but also bearing in mind that the Court has instructed me (and them) to furnish docs to each other and the court by Friday and as I dont want to upset the DJ too much, unless someone has other ideas, I have 3 options;

 

1. Send copies of my all letters to all concerned (cos I've been told to and thats all I have as evidence anyway) and wait for the hearing in March to argue about everything

 

2. Send all my copy letters with a full blown defence but ask for permission to amend should Bank finally come through with docs (I'm thinking of the sticky by pt2537 who says quite sensibly that I cannot defend what I haven't seen)

 

3. Do not send docs to court but instead ask the court to issue an 'unless' order to the bank - but would this upset the DJ cos I haven't forwarded my docs to court by the specified date?

 

Any thoughts please?

 

Last lap I think - almost there

 

Dont p*ss off the Judge.. so go with option 1 and ask for the Unless order. As PT says, you cant defend what you dont have.

[Linian]

Actually - that must be option 4 cos its a mix of 1 and 3?

 

Anyway - nuff said, thats what I'll do

 

Thanks again to all for the input

 

Good luck and keep up the good work

[emandcole]

Hi Linian, lot's going on here. First of all always do what the judge asks so there is no margin for him/her to wave their finger at you. If they want a lap dance then do it .

 

(You can get the fee back in costs if you win ).

 

With that as a given with you having followed exactly what has been asked of you it appears that after your request for disclosure (CCA/SAR/CPR?) the claimant has produced very little?

 

Forgive me if I ask something already covered but hopefully you submitted an embarrassed defence based on the failure of the other side to disclose?

 

So, as I'm sure you know if they don't produce anything they're stuffed.

 

As for the default and the de minimus attitude of some judges this is a legal document and has to be correct. Without it being correctly applied as a tool to secure their 'rights' to proceed with litigation and secure what is a very serious and damaging judgement an invalid default is a complete defence in its own right.

 

If they subsequently terminate on the back of an invalid default you should accept their unlawful rescission with a letter and ask for the arrears they claim are outstanding which you can sometimes assess for fairness before paying as full and final.

 

If a judge ignores wonky defaults because you've got one who frankly is a disgrace to their profession they risk making a mockery of the will of parliament, a perfectly valid path to appeal on.

 

Critically and something to remember is that such processes are in place to protect consumers, many of which are probably individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right.

 

If they have denied you this right they need sorting out as it's your right to have enough time to potentially offer the remedy they demand, thus avoiding litigation in the first place. This is elementary stuff but so vital.

 

Again, critically, it is the lender who has the ability and the resources to give that information with precision. You're dealing with a supposedly 'professional' creditor, not a twitchy geezer in a dimly lit car park!

 

If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy LJ in Woodchester v Swayne [1998]]. Would suggest you check that out.

 

As for overdrafts and CCA's an overdraft is a regulated agreement but does not need to be evidenced with a formal paper agreement, the sort we're all familiar with. However, in order to take advantage of the fact that the bank does not need to show you a credit agreement they need to have responded in the correct manner within a timescale, which I believe is 3 months and 1 week, detailing the terms of any overdraft in a letter to you. By doing so they comply with the OFT Determination on Consumer Credit Act exemption (Section 5 I believe) and can enjoy putting their fingers up to you when you ask for an agreement.

 

If they failed to do this and take advantage of the OFT Determination they would technically have to show you an agreement for the amount they claim is owed. A SAR should obtain this for you but invariably banks don't retain original copies of what they claim they would have sent you.

 

Don't think this has been challenged in the High Court so don't belive there are any precedents for challenging this apparent apathy with such important documents. That's bankers for you eh?

[Linian]

Hi emandcole

 

In my case, after the (valid?) default notice, ESheds stated that the agreement was now terminated in a letter (should the termination notice be in a prescribed form btw?) so faulty DN is very important here as they obviously cannot reopen the account?

 

Also, "to take advantage of the fact that the bank does not need to show you a credit agreement they need to have responded in the correct manner within a timescale, which I believe is 3 months and 1 week...."

 

Respond to what whithin the timescale please?

 

I haven't actually quoted CCA/SAR or CPR in my papers to court, I've simply aksed for sight of documents mentioned in their POC and the court has now ordered them to forward the same by Friday and "original documents shall be brought to the hearing" As yet I've seen nothing but obviously there's still time.

 

Interestingly, the POC states "amount due on account ref ....... being a credit agreement reg by CCA 1974" No mention of OD. Will they not therefore need an agreement for the account mentioned ie the bank account?

 

Just a thought??

[emandcole]

Ok, what date is shown on the default letter and what date was listed as the date to comply by? If they've said 'within 17 days from the date shown' for example it sucks.

 

It appears to be the case that you've already verified it is invalid?

 

If Eversheds or the original creditor sent you a demand for the whole sum within X days or we'll kill you type letter before the date shown (which it should be) on the default notice then as far as I'm concerned they have denied you the time needed to provide remedy.

 

Such termination can be either by stating that your account has been terminated, or by demanding the full balance within X days, or else.

This would I believe become an unlawful rescission of any agreement you had and on the back of an invalid default notice it is bad news for them.

 

The reference to 3 months and 1 week relates to the bank in the case of an overdraft being provided. They must, in order to enjoy CCA exemptions (provision of an agreement) send you a letter informing you of the terms they are offering you for this OD. It must include the interest rate etc.

 

The POC's are interesting. If they've stated it is as a result of a CCA agreement then they will need to show an agreement. Of course, in line with what has been added above, if they'd complied with the OFT Determination to attain exemption from having to provide an executed agreement with prescribed terms, they have effectively contradicted themselves completely.

 

If you follow, by confirming this claim is the result of a CCA breach they are implying they did not attain OFT Determination exemption and will need to give you an agreement. They would need to amend their POC's to reflect this mistake and at this stage they'd need the permission of the court to do so. It's not terminal to their claim but would make them look stupid.

[Linian]

The relevant docs are in post 7 in this thread

 

Any help?