NatWest Charging Order

[Docman]

Hi MA

 

A good defence. I've cobbled together one below whioch also deals with a couple of other points like the interest they are claiming. What do you think?

 

In the Northampton County Court Claim number xxxx

Between

xxxxxxxxxxx- Claimant

 

and

 

mightyacorn - Defendant

DEFENCE

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by National Westminster 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. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedure Rules.

 

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement or account numbers been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

 

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

6. It is admitted that I held a bank account with National Westminster Bank plc, which was opened in 1999 and closed on or around May, 2008. It is Not admitted that I signed any agreement with XXXX .

7. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

8. It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

9. It is averred that before Proceedings may be commenced the Claimant or xxxx must have served myself with a valid Default Notice complying with the provisions of Sections 87 and 88 of the Act and the Regulations made subsequent to that Act. It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof.

 

10 Further and in the alternative if, which is not admitted, an enforceable agreement is in existence, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how the sum claimed is lawfully owing.

 

11 Further, it is denied that any alleged contractual account charges and any interest applied thereon which make up any part of the sum claimed are lawfully owing in that it is averred that these sums would have been claimed pursuant to an unfair contract term and in addition are in breach of the general law.

 

12 It is averred that any account charges that are claimed are in breach of the common law in that they are a penalty and that they do not reflect any actual loss or the true extent of any costs incurred by the Claimant and are therefore void.

 

13 Further and in any event it is averred that any clause of the alleged agreement under which the account charges are claimed is an Unfair Term contrary to The Unfair Terms in Consumer Contracts Regulations 1999 and, by virtue of Regulation 8(2), "shall not be binding on the consumer". Any such contractual terms are therefore void

 

14 In any event and pursuant to the County Courts (Interest on Judgement Debts) Order 1991 the claim for interest pursuant to Section 69 of The County Courts Act 1984 is denied.

 

15 Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

 

16 Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

 

Statement of Truth

I believe that the facts stated in this defence are true.

 

Signed

 

xxxxxxx

Defendant

[Mightyacorn]

Cheers Docman, goes a lot deeper than mine and includes far more, will it fit on MCOL?

 

 

MA

[Docman]

It should do. The limit is 8000 characters and I think this version is about 4 - 4,500.

[Mightyacorn]

It should do. The limit is 8000 characters and I think this version is about 4 - 4,500.

 

 

I'm glad you did the counting, I've not got enough fingers.

 

Post been for today, nothing in it from IM, so will send your defence MCOL over weekend.

 

It's worth noting that apart from that shown at post #11 I have received nothing from NatWest in response to SAR and it's getting very close to the 40 days !!

[Mightyacorn]

No reply to my CPR request, so defence sent by RD on Monday.

 

SAR, still no substantive reply 40 days expires 19th June.

Edited June 16, 2010 by Mightyacorn

[Mightyacorn]

You should, they can only instigate legal proceedings if they have a default notice from there client, along with statements (With your address on ) in order to issue a claim.

The SAR will reveal what they have, and exactly what they have been instructed to do. You are legally entitled to see copies of everything. Written correspondence, & electronic mail.

 

Debs

 

 

SAR reply from, Irwin Mitchell, all that's in it is:-

 

1. Copies of all letters between by them to me.

2. Copy of Acknowledgment of Service of Claim

3. Copy of entry from Land Registry

4. Copies of letters from me to them.

5. Copy notes from IM system

6. Copy of personal information held.

 

There is nothing else. Nothing at all between NatWest and them.

 

Also still no CPR reply and nothing from NatWest SAR

 

Where to from here please?

[Mightyacorn]

And nothing from NatWest, times up for SAR.

 

Where to from here please?

[paulwlton]

Could you post a brief summary of events.

[Mightyacorn]

Letter from me to NatWest in Apr 2008 Outlining circumstances regarding my health and financial situation.

 

Nothing received, no statements, or anything from NatWest

 

21st April 2010 letter from Irwin Mitchell - Letter before Court proceedings

 

Letter from me to IM offering token payment

 

SAR to NatWest

 

28th April 2010 letter from Irwin Mitchell giving me final warning.

 

29th Apirl letter from IM rejecting offer of payment.

 

Letter from me to IM offering token payment

 

7th May, letter from IM - Application for Money Judgement

 

!2th may, letter from IM refusing my offer

 

14th May letter from IM application for Judgement

 

14th May, Claim form from Court

 

17th May, SAR reply from NatWest, just two sheets of paper one with my details on, the other a diary of events from 13/06/08

 

7th june, embarrassed defence sent RD to court.

 

14th June, SAR reply from IM, details as post #56 above

Edited June 20, 2010 by Mightyacorn

[Mightyacorn]

SAR reply from, Irwin Mitchell, all that's in it is:-

 

1. Copies of all letters between by them to me.

2. Copy of Acknowledgment of Service of Claim

3. Copy of entry from Land Registry

4. Copies of letters from me to them.

5. Copy notes from IM system

6. Copy of personal information held.

 

There is nothing else. Nothing at all between NatWest and them.

 

Also still no CPR reply and nothing from NatWest SAR

 

Where to from here please?

 

Looking through the paperwork they sent me, and the diary page sent by Natwest, it would appear that Irwin Mitchell have been involved since 8th Auust 2008, however it would seem that they (IM) inputed my name wrong into their system, consequently any correspondence they may have sent, has been sent to the wrong person, and they only picked up correct details in April this year, hence diary of events from them only starts rom that date on my details.

 

SAR would only reveal details under my name. That would explain why no documentation received by me for nearly two years.

 

Anyone help me in this bit now please, am I allowed to ask for information on my file which is wrongly addressed? Would it be worth me writing to IM indicating that I am aware that my file was actually passed to them in Aug 2008, i request all documentation attached to my file from that date?

 

As Natwest have not complied with my SAR I have sent them a letter pointing out the error of their ways.

[debbbbsy]

There is nothing else. Nothing at all between Natwest and them.

They are deliberatly witholding data. Demand a copy of the instruction from Natwest which legally entitles them to issue the claim. Resend your request, but this time highlight vital points in red.

 

29th Apirl letter from IM rejecting offer of payment.

Is there any data from IM that shows they consulted there client before rejecting your offer. Is there anything in the Diary Event which corresponds with this refusal. Who made the decision to reject your offer, Natwest or IM ?

 

Also, IM should have recieved statements from Natwest to substantiate the 'True' value of the debt.

 

Looking through the paperwork they sent me, and the diary page sent by NatWest, it would appear that Irwin Mitchell have been involved since 8th Auust 2008, however it would seem that they (IM) inputed my name wrong into their system, consequently any correspondence they may have sent, has been sent to the wrong person, and they only picked up correct details in April this year, hence diary of events from them only starts rom that date on my details.

 

Now that you have discovered a blatant error. Send an "Official letter of Complaint" to Natwest (Its the same address as CMS in Telford). They have to investigate & have to respond.

 

DEbs x

[Ganymede]

They are deliberatly witholding data. Demand a copy of the instruction from Natwest which legally entitles them to issue the claim. Resend your request, but this time highlight vital points in red.

 

Is there any data from IM that shows they consulted there client before rejecting your offer. Is there anything in the Diary Event which corresponds with this refusal. Who made the decision to reject your offer, Natwest or IM ?

 

Also, IM should have recieved statements from Natwest to substantiate the 'True' value of the debt.

 

 

 

Now that you have discovered a blatant error. Send an "Official letter of Complaint" to Natwest (Its the same address as CMS in Telford). They have to investigate & have to respond.

 

DEbs x

 

 

It will be IM, they will have a mandate and authority from the bank to accpet/reject offers that fall within a certain bracket. I think the OP would be wasting their time focusing on this when there are more important issues...

[Docman]

I agree. Any correspondence between the Bank and Irwin Mitchell as their solicitors and made in contemplation of litigation will be covered by legal privilege. You will not get a copy of such correspondence under the Data protection Act. Better to concentrate on getting information from the Bank directly by sending pointed reminders to their Data Protection head.

[Mightyacorn]

Just an update, nothing in response to embarrassed defence submitted, no further response to SAR. Called Court to see progress apparently Claim stayed as of Monday 12th July, due to lack of response from claimant. Anything I should be doing now please?

[Mightyacorn]

Searching thro' threads and other internet sites, I can find plenty on what to do if you're the claimant and a defence is filed/not filed, but I can't find anything if you're the defendant and can't get any response from the claimant. They make a claim, and then don't respond to CPR requests, or to embarrassed defence filed, where does one go from here?

Edited July 15, 2010 by Mightyacorn

[Ganymede]

Just an update, nothing in response to embarrassed defence submitted, no further response to SAR. Called Court to see progress apparently Claim stayed as of Monday 12th July, due to lack of response from claimant. Anything I should be doing now please?

 

 

 

The claim is stayed and so dead in the water at the minute and can only be re-instated by the Claimant making an application to court having good reasons for doing so.

 

I'd try and get their claim struck out now.

[Mightyacorn]

The claim is stayed and so dead in the water at the minute and can only be re-instated by the Claimant making an application to court having good reasons for doing so.

 

I'd try and get their claim struck out now.

 

Is that Form N244 I use?

 

Two questions:-

 

1. What happens if I just leave it as stayed?

2. If I apply for and get it struck out, can they not make a fresh claim?

[Mightyacorn]

Bump

[Mightyacorn]

Wrote to NatWest pointing out that I had not received all I had asked for under SAR, rather indignant letter arrived this morning from them, stating that they had responded to my request previously, but to satisfy my request they were enclosing my SAR again, all that was in the letter was the same diary of events as before.

 

Now, do I assume that they have no other paperwork regarding me or my account, or do I persue them further?

 

Due to the Claim not being followed up by them (or Irwin Mitchell) am I doing myself harm if I persue the SAR, should I just let it drop?

 

Anyone wioth any advice please?

[Mightyacorn]

Bump

[Docman]

MA

 

I'd leave the SAR for now. You have tried and they haven't responded properly - or they have if what they have sent is all they have.

 

As regards the claim, it is dead until the claimant revives it by applying to lift the stay. Technically, the cliamant should give a reason to the court but many courts just accept anything and lift the stay.

 

You can make your own application to lift the stay and have the case struck out - only problem is it can be like poking a sleeping bear. You don't know what the reaction will be. They could ignore you and allow the case to be struck out or they could start to file all sorts to documents and other applications. It's your choice I'm afraid.

[Mightyacorn]

MA

 

I'd leave the SAR for now. You have tried and they haven't responded properly - or they have if what they have sent is all they have.

 

As regards the claim, it is dead until the claimant revives it by applying to lift the stay. Technically, the cliamant should give a reason to the court but many courts just accept anything and lift the stay.

 

You can make your own application to lift the stay and have the case struck out - only problem is it can be like poking a sleeping bear. You don't know what the reaction will be. They could ignore you and allow the case to be struck out or they could start to file all sorts to documents and other applications. It's your choice I'm afraid.

 

Thanks Docman,

I just don't know what to do with this one, I can't understand why I am getting nothing from them, I woul;d have thought I'd have had something from IM, they were sending at least one letter a week until the Claim, and now nothing, perhaps they're a bit put back because I called their bluff and defended.

[Docman]

MA,

 

At this point IM have to put up some cash if the want to proceed. They are probably waiting for an OK (and cash) from NatWest. Give a few more days.

[Mightyacorn]

Still nothing !!!!!