NatWest Charging Order

[Docman]

MA

 

Irwin Mitchell are just continuing to steamroller, looking for a Charging Order to gain some advantage over your other creditors. A bit useless in my opinion in view of your other circumstances and is probably only being done to justify their own existence to the Bank.

 

With eveything you have described, I have to ask if you have considered bankruptcy as an option? Is there a reason that you have gone down that route?

Edited May 20, 2010 by Docman
typo

[Docman]

Ok, parts of the Consumer Credit Act apply but the defence has to be worded differently. If you are up for fighting this, then you should start by acknowledging service online. I'll have a look at a bank account defence but I can't get all my stuff until I get back to my office tomorrow. I'll repost then.

 

Doc

[Docman]

You can use CPR 31.14 to ask for a copy of a document that is mentioned in the Particulars of Claim. In your case, the POCs state 'By agreement'. There is also an inference that they have made a written demand on you to repay. I would amend the CPR 31.14 drafted originally by surfaceagentX20 thus:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement.

2 the demand for repayment

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.Whilst there is an exemption from serving such docments with the Claim form when issued through the Bulk Claims Centre in Northampton, you are still obliged to forward these documents to me when requested.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

Hope this helps and don't forget to acknowledge service of the claim form.

[Docman]

Thanks Debbbbsy and Docman,

 

Deb, yours appears to be more for a Credit Card agreement, this claim is for an Overdraft, I apologise if I have read it wrong.

 

Docman, should i not be asking how they have come to make up the amount they are asking for and proof of that figure?

 

MA

 

You would be forgiven for thinking so but in fact CPR 31.14 only provides for copies of documents mentioned in the POCs. The quantum of the claim can be examined later. Let's get the ball rolling first and then sort out the details later.

[Docman]

Well the letters of 28 April and 7 May would be classed as 'Letters Before Action' or LBAs but that is all. They are not agreements nor letters setting out your overdraft position.

 

 

As it stands, the POCs could relate to anything including an agreement to buy the local ice cream franchise for £14,000 p;us stock at valuation!! I suggest that a short 'embrassed' defence should be lodged, basically denying the claim and putting the bank to strick proof of their claim.

 

Any one got any other thoughts?

[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

[Docman]

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

[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.

[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.

[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.