Summary Cause Overdraft Court Summons Please help

[mrwheeler]

Hello All

 

Wondering if any one could help me, problem with an impending court summons, attempting to get a decree - I want to fend off against possible bankruptcy at all costs own my house and have (some) equity.

 

Ran into difficulties last year, contacted cab and entered into a prorata payments to all creditors, maintained ever since no probls.

 

One of the creditors is an Overdraft with bank which had for at least 10 years or so, out of the blue, they have got snotty and sent the wolves in.

 

1. I think they do not have Exemption from Section V as they did not send the terms of the interest within 3 months as per OFT exemption - but then I read on the forum that all the bank has to say is that they sent the letter and the sheriff would agree under balance of probability. Does anyone have any thoughts on this being a pointless argument?

 

2. Does the lack of signed agreement carry any weight with an o/d?

 

3. There are loads of Default charges on the account, can I make a counter claim now that the test case has saved the banks bacon?

 

4 They sent a "NOTICE under section 76 and 98" requesting the balance and 28 day intention to file a default...... However, the cover letter for the "NOTICE" says "please find attached default notice".

 

Then they officially terminated - any thoughts that they terminated incorrectly as 76 + 98 for non default situations? And they stated her eis your default notice - should they have used s87, as they are saying it is a default situation?

 

(I see that this is a current live issue)

 

5 I suffer from poor health and am on benefits only, should I use this as defence that they are being heavy handed by not accepting my payments set up by CAB and going for a decree?

ie they contacted CAB a couple of months ago and requested that unless I increased my payments to £50 per month they were going to push ahead with court action. (presently paying £5 a month.

 

Bit of a lengthy post sorry, but any help at all would be appreciated

 

Many Thanks

[seriously fed up]

I am not really sure about the application of the Consumer Credit Act to bank accounts and overdrafts (and it would depend a good deal on what kind of account/ overdraft - personal or business) so, in order not to mislead I am going to pass on that one and hope someone who does know will happen by.

However to take on some of your other questions

 

1. they dont have a signed agreement - oh dear. Yes I cannot envisage that this wouldnt be a problem for them no matter what type of account/ legislation applies. We do still have rules of evidence (I would hope)
   
2. reclaiming default charges - I would have a look at this http://www.consumeractiongroup.co.uk/forum/general/259614-updated-bank-charge-letter.html, and at this Govan Law Centre: Sheriff puts Bank of Scotland to proof on bank charges. My advice would be to leave it till after the Sharp case is finished, if you can - things should be a bit clearer.
   
3. S76 and 98 of what? If the Consumer Credit Act then these sections say that an account cannot be terminated (or earlier repayment required) unless a lawful default notice has been issued (and even then you must have 14 days to remedy the default). If this is covered by the CCA, then they can issue a default if you are in default of a term or condition. The problem is what status your agreement for reduced payments (£5) has? Does it amend the T&Cs or are they accepting this "without prejudice" in effect and thus can go back as they have and claim you are in default as you are not meeting the agreement (£50) to repay the sum? Either way, for sure, they have to send a default notice in advance of termination, and that default notice should give you 14 days to remedy the default - so for instance if you got the notice on Tuesday (1st June) you should get at least till the 15th to remedy the default - if not its unlawful and they are in serious bother as they cannot issue another corrective notice with the right dates. So - did the default notice arrive with the termination notice? If so, hang on to this - could be important for your defence
   
4. Lastly, if you are on benefits, and they do take it to court, then the court will look at your ability to pay and set an amount accordingly. No idea what this will be - from what you say, it would seem unlikely to be £50, but its a decision for the court and it will (must) reflect your ability to pay. The courts have taken on board that you cant get blood from a stone.
   

I hope some of that helps and that someone with more background on bank accounts comes along to help you real soon.

[banker_rhymes_with]

Hello Mrwheeler!

 

Just to save me typing a load of bumf again, if you could please take a look at this Thread, some of your issues may be answered.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/260084-im4347-hsbc-business-account.html#post2950714

 

I've covered s76 and s98 there in a little detail.

 

Once you've seen that, then if you need more help, please just ask away here.

 

I hope this helps.

 

Cheers,

BRW

[mrwheeler]

Hi Seriously and BRW

 

Many thanks for your input on this, you have really given me alot to look into and consider - brilliant.

 

I will get a defence together based on what I think is crunchy and see what you think.

 

Cheers for now

[IdaInFife]

thanks SFU and BRW

 

ida x

[mrwheeler]

Hi Wondering if anyone can have a look at my draft defence, date is quite soon.

 

Apologies, had to delete, had my pleas in law incorrect, will re post

 

Edited June 10, 2010 by mrwheeler
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[mrwheeler]

Wondering if anyone could keep me right here.

 

Summoned for a defaulted credit debt. I defended in court and counterclaimed for refund of charges and interest etc.

 

At the hearing, the other side motioned to sist - I agreed.

 

Today they have just written to me saying they propose to dismiss proceedings with no cost due to either party:-)

 

1 My Counterclaim is £1700 more than what they are claiming from me in their summons - are they proposing to just call it a day and scratch the difference?

 

2 Should I request a motion of absolvitor?

 

Any help most appreciated, a bit unsure on procedure this part.

[seriously fed up]

I would be inclined to seek to negotiate at this stage

 

1. get an agreed motion of absolvitor to make sure that they dont come back in due course
   
2. negotiate with them for as much of the £1700 as you can. See what you can get. One way the bank might look at this is that if this doesnt get to court, the legal fees will be less and they might as well give some of this to you. You would need to see how much you can screw out of them and make a judgement on whether to accept or not at that point. But it does have the advantage that it doesnt need to go to court
   
3. if it does go to court, their recent correspondence with you makes pretty clear they dont fancy their chances. This might simply be on the basis that even after you have "paid" what they owe, they still owe you £1700. But is the account enforceable - prescribed terms and all that? If not, then their liability in reality isnt £1700, but ALL your charges. As we dont know if it is enforceable or not, we cant offer advice, but its something else for you to think about.
   

Best of luck. Yours doesnt look a bad position to be in.

SFU

[mrwheeler]

Hi SFU

 

Many thanks for taking the time to reply - you really helped me out by dialling into the salient points - brilliant stuff.

 

Kind Regards

 

MW