natwest summons for joined overdraft and loan

[Guest]

when is the hearing?

[tedney]

Hello Ford

It was yesterday.

Sadly, Mrs tedney lost, more later.

thanks

t

[AndyOrch]

Oh dear....details please Tedney

 

Andy

[tedney]

I represented Mrs t as agreed by District Judge in his order for the application hearing.

I also presented a letter of apology from Mrs t at the hearing,

as she was attending hospital on the day of the hearing.

 

The DJ, who evidently knew the legal representative appearing for NW said he did not have a full file on the case, and was lacking witness statements etc.

 

In answer to recent posts on here about which track, the judge said that no track had yet been allocated.

 

His first question was to ask to see the initial defence, which was filled out on MCOL, which was very basic,

and disputed on the old "unfair charges" statements (this before the test case (2008).

He then said no valid defence, as per the test case.

 

he did not refer to Mrs.t's inital or subsequent witness statement,

nor the reply to Defence and current application from the Claimant,

which quoted unfair charges under hardship and unfair Bank treatment.

 

He was not interested that monthly payments had been made without fail, in agreement with the Claimant,

and not interested in the delay of, in effect 6 years, to lifting the stay.

 

I stated that the Claimant had tried to get a settlement,

but had not provided a realistic sum for Mrs t to agree to,

i.e. the initial claim, less all payments made since the claim, and (ideally) less the counterclaim for charges.

 

Just prior to the hearing NW's representative said they would agree to a lower figure, as I just described,

but even this was incorrect, they had not included all payments to date.

 

As the application was down to be heard for 45 minutes,

the DJ suspended the hearing after that time for an agreement to a lower figure to be reached.

NW's rep obtained agreement from his client, and the DJ ordered for that amount.

 

As for costs, which NW's solicitor had computed to be more than the eventual debt (!) the DJ reduced it substantially.

 

In round terms,

Mrs t lost the counterclaim, and had to pay NW's costs, which when added to the claim,

brought the total back to more or less the value of the Claim in the first place.

 

If NW and their representatives had been reasonable and provided correct and acceptable figures,

then the claim could have been settled long ago.

 

NW's Tomlin Order attempt quoted a figure double what they had settled for in court,

as they had not taken into account Mrs t's payments,

and also added interest to the debt, which was not asked for at the hearing.

 

I was called a Barack Room Lawyer by the DJ!

 

One interesting side note, which seemed to concern the DJ but was glossed over, as I did not know if it had any significance:

 

 

The Original Claim was issued by Irwin Thomas Solicitors, and Mrs t received a letter from Aspect Legal in 2013 stating that Aspect had taken over ( I know that Aspect is the same company as Irwin).

 

 

The Court did not list Irwin Thomas, and the DJ got annoyed when I told him that Irwin had brought the initial claim, as he said he had no record of that.

 

 

When I showed him the original claim form, he pulled a face at NW's rep. Don't know what that was all about?

 

It will be interesting to see now if NW try to lift the stay on the Claim against me now,

(not heard anything since Jan. 2016) as, as per previous posts on this thread, the claim against me was not fully particularised,

and includes the current account the subject of Mrs. t's claim, in addition to a loan account.

 

 

I understand that such a claim cannot be upheld, am I correct?

 

thanks for everyone on here for their advice, I hope this post may help others in similar circumstances.

Regards

t

[AndyOrch]

" One interesting side note, which seemed to concern the DJ but was glossed over, as I did not know if it had any significance: The Original Claim was issued by Irwin Thomas Solicitors, and Mrs t received a lettericon from Aspect Legal in 2013 stating that Aspect had taken over ( I know that Aspect is the same company as Irwin). The Court did not list Irwin Thomas, and the DJ got annoyed when I told him that Irwin had brought the initial claim, as he said he had no record of that. When I showed him the original claim formicon, he pulled a face at NW's rep. Don't know what that was all about? "

 

I would assume the DJ would be questioning whether there should have been a change of representation....that they should have served notice of the change.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19/pd_part19a

 

As for " Barack Room Lawyer " simply typifies that these people are out of touch with reality and really they are not fit to hold the position.....ignore.

 

Many thanks for the conclusion Tedney. ...even though not a favourable outcome.

 

Andy

[tedney]

Thanks for your comments Andy.

Mrs.t's case most likely concluded, but mine is still stayed:?:

Regards

t

[Guest]

Hello Ford

It was yesterday.

Sadly, Mrs tedney lost, more later.

thanks

t

ah. at least the J reduced their costs 'substantially'.

its not good being accused of being a 'barrack room'. what else are LiP's supposed to do but represent themselves when legal aid against the 'haves' no longer exists!

cheers for updating

[tedney]

Another Question:

 

Should I have asked at the hearing of Mrs t's claim for Nastywest to confirm that, the sum that they settled for would clear the balance of the account, and so the account would then be closed?

 

Now received the written judgment, which confirms the amounts agreed in court, but does not state when to pay.

 

Claim was issued by Nastywest for the full balance of an account at the time (2008!) but Nasty were adding interest until 2010, and also added solicitors costs in 2016. No statements or advice of interest or charges were received on a regular basis, only when provided (reluctantly) in reponse to SARs.

 

So, Nastywest agreed a reduced sum at the hearing of Mrs.t's claim, but this sum would not clear the balance shown on the account as at the date of the hearing.

 

As statements are not forthcoming from Nastwest automatically, should I write and request an upto date one, and then see what the balance is and start from there, or would it be best to write now and ask for confirmation that the account is now clear and closed?

 

As before, any comments and help are welcome.

 

Incidentally My claim (from Nasty) is still stayed, and part of that claim is for the joint account with Mrs t!

 

Thanks

 

t

[tedney]

Update !

Not content with obtaining Judgment, Nastywest have now sent an "Application for Charging Order", and an inflated (over and above theclaim confirmed by the Court) debt figure!

 

A charging order was not brought up or discussed at the hearing.

 

Surely Nasty have to go back to the Court if they want to apply a charging order?

 

Answers/comments on this and my previous post (261) would be welcome.

Thanks

 

t

[AndyOrch]

No need for court application on an Interim CO...but there must be a hearing for the Final Charging Order Ted.

 

Andy

[tedney]

OK, thanks for that Andy.

 

What about inflated amount for debt though?

 

The CO states a sum of the claim plus an amount specified by the Judge for costs, but the "application" from Nastwest's solicitor inflates this by approx £400, around a third over their specified costs.

 

Can they do that?

Thanks

t

[AndyOrch]

Final Charge can only reflect the judgment amount unless the judgment /agreement allows for post J interest but there could be extras added for the FCO hearing/exection fees etc .....

 

Seek clarity if any FCO hearing actually tranpires

[tedney]

Thanks once again Andy!

 

There is no reference of interest mentioned on the court order.

Actual written order was not issued by the court until over a month after the hearing date. Is this relevant?

 

The "Application" received from the solicitor just states "principle debt" as a sum which, as per my previous post, is higher than the court's order by around £400.00, so not sure why this extra sum has been "added" as a debt.

 

The "application" states that it is their client's intention to enforce the judgment by way of a charging order on Mrs t's property.

which raises another question (sorry!)

 

can they apply a charging order on a jointly owned property, bearing in mind that this debt is only Mrs t's as that is what the court judgment was for?

 

Thanks

 

t

[44636466]

shame

[AndyOrch]

" The "application" states that it is their client's intention to enforce the judgment by way of a charging order on Mrs t's property. which raises another question (sorry!) can they apply a charging order on a jointly owned property, bearing in mind that this debt is only Mrs t's as that is what the court judgment was for? "

 

It will be a K type restriction only if the debt is single named against a jointly owned property.

 

https://www.gov.uk/government/publications/charging-orders/practice-guide-76-charging-orders

 

Andy

[tedney]

Thanks for the link Andy, I have had a quick read through.

It seems very involved, but I will look at it again if and when it comes to it!

 

Sorry to ask again,

but am I correct in saying that even though the original claim issued was of a higher amount,

the amount owed to the Claimant can only be the amount stated in the written Court Judgment,

 

so any higher sum that may be requested by the Claimant would mean that the Claimant would have to go back to the Court to seek an alteration to the Judgment?

 

The Claimant is describing as the "Principle Debt" the original claim total including court and solicitors fees stated on the original claim, when the eventual claim amount (at the hearing) including claimant's costs, is lower.

 

The Claimant is still asking for repayment of the principle debt (the original claim), even though their rep. in Court, and subsequently the Judgment has been written for the (what I thought was agreed) lower amount.

 

As always, any help and/or comments are welcome.

 

Thanks

t

[AndyOrch]

Judgment amounts can vary on either if the claim is over 5K or whether the terms and conditions allow for post judgment interest...also it will vary if further execution fees have been applied.....so there is not one answer fits all its down to each individual agreement and judgment and post judgment actions..

 

Andy

[tedney]

Thanks for that Andy

 

Claim was over £5K,

judgment of claim was less than £5K plus costs and advocates fee for day of the hearing.

 

Original claim stated "interest under s.69 of CCA 1984 at rate of 8% per annum from March 2008 until judgment or sooner".

 

Claim amount should have been reducing as monthly payments since 2008 were made,

and these payments were reflected in the judgment issued this month.

There was no mention of post judgment interest on the original claim or the judgment.

 

The claim was for a current account, opened in the 1970's, I do not have t&c's for the account.

 

What are "execution fees" please?

 

No mention of these, to my knowledge anywhere either.

 

situation is judgment received,

claimant was paid full amount of judgment on day judgment received,

claimant's solicitor then sends letter saying full original claim amount owed and saying will enforce with charging order.

On date that letter was issued, claim had been paid (in full) 2 days before.

 

They follow up with further letter still saying full claim owed,

and also Claimant themselves write and say that as unable to come to an arrangement (what arrangement?, we do not know!) account has been passed to solicitors!

 

We just want Nastywest and friends to stop chasing a debt which is not owed, in our view.

 

Hence questions about what they can "add" even if judgment was paid in full.

 

Your thoughts and assistance would be most welcome here!

 

Payment was made by banks' Faster Payment System" and should have arrived at payees account within 2 hours of payment.

Payment is on bank statement.

 

Of course, as Nastywest do not send statements to us for this account, we will not know if they received as the bank system advises!

[AndyOrch]

Ring the Solicitor and confirm what you have posted above.Further execution fees would be Charging Order fee and any hearings or Bailiff fees or Attachment of earning fees.

 

Andy

[tedney]

Thanks again.

 

Did not ring but clarified for the moment. More later!

t

[tedney]

Got this from Andyorch's post #199 on here:

 

"I assume you will be arguing the amalgamation and relying on the separate T&Cs of each debt?" Please read on!

 

Nastywest, having won Mrs t's claim, are now pursuing mine!

 

As per previous posts, they combined a current account and a loan into one sum for their claim on me.

 

As the current (joint) account has been dealt with, the balance left on their claim on me is for the loan account.

 

However, the claim amount included PPI which has been reclaimed and paid, and payments have been made to the loan account since the claim was issued.

 

I counterclaimed for the PPI and charges, but the court threw out mrs t's charges counterclaim, so probably the same would happen in mine.

 

Nastywest are suggesting that I pay a sum in full and final, and no further action will be taken. No costs to be awarded. The sum represents a saving on the remaining balance on the loan account.

 

My questions is, as per andyorch's comment (repeated at the start of this post) as they have combined 2 accounts (not particularised on the original claim) would the claim stand up?

 

My original defence states that Nastywest have not acted in accordance with their code of practice and ignored notification of my financial difficulties.

 

Also could someone advise about differences between a Tomlin Order and A Consent Order please?

 

My understanding is that a Tomlin, if agreed stays on the Court files as a Judgment according to its' terms, but, as long as the terms of the schedule are adhered to, the Judgment does not appear as a Judgment on the register, and so does not affect a credit file.

 

A Consent Order, can detail Terms to dismiss the Claim, with both parties agreeing to the Consent Order. Therefore the Claim is considered "dealt with" by the Court and no further recording or action is taken by the Court or either party.

 

Are those views correct please?

 

I appreciate that each Tomlin and Consent can be different, but my thoughts are that it is better to agree and obtain a Consent Order in a case, rather than agree to a Tomlin.

 

Also, and further to previous posts, what is the "official" term for the opposite to Without Prejudice correspondence?

 

Help with these questions would be much appreciated.

 

Thanks

t

[AndyOrch]

Consent Order

 

This type of agreement is usually used when the terms of the settlement are straight forward and cover only the arrangements which relate to the action at hand ie one person pays the other person a sum of money in a set number of days.

 

Tomlin Order

 

These are used if the settlement terms are complex, they want to keep them confidential or they deal with issues which weren’t part of the court claim itself.It happens quite often that when coming to an agreement, common ground can be found between the parties that they never previously contemplated.

It’s also usual, in a Tomlin Order, for the claim itself to be suspended in all regards except for enforcement of the Tomlin Order itself. This means that if either person doesn’t do what they promised, a new Court claim doesn't need to be started.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?294525-Privileged-Without-Prejudice-and-Without-Prejudice-Save-as-to-Cost-Documents-A-Brief-Guide-on-the-Subject

 

Regards

 

Andy

[Guest]

My questions is, as per andyorch's comment (repeated at the start of this post) as they have combined 2 accounts (not particularised on the original claim) would the claim stand up?

i dont recall the background atm. but, wld think that they wld have to particularise each in their statement of case, and therefore show each as it progresses.

i know that they do 'router accounts' which maybe where they have joined the accounts up, but still wld think that they wld need to substantiate each in a claim.

[AndyOrch]

They must substantiate and particularise each agreement in disclosure...cant just amalgamate as if its one debt....2 agreements 2 default notices etc etc.

 

Andy

[tedney]

Thank you so much for this Andy, and the link about WP.

 

I have looked through the link quickly and identified this paragraph:

 

"The Arbitrator will not be told about this offer until after he has made his decision on liability.

 

If the amount he awards the Claimant is less than or equal to the amount included in the Respondent’s “Without Prejudice Save as to Costs” (Calderbank) offer, then the general rule is that the Claimant should pay the Respondent’s legal costs (and his own) from the date the offer is made.

 

The logic behind this is that the Respondent has correctly assessed the justified level of the Claimant’s claim, and the Arbitration from that date on was a waste of time and money."

 

Nasty made an payment offer in a WPSATC letter, which I complied with, but they added other terms on a Tomlin, which I do not agree with, and suggested a Consent Order.

After all the issue is purely about a sum of money, which has been paid.

 

So I interpret that they are being unreasonable as the sum they requested has been paid, and I have advised them that the counterclaim is dropped.

 

My view is that they sould accept that and agree to the Consent Order.

Especially as they have combined to accounts, a loan and a current account, and not particularised them, on the claim, only in subsequent correspondence, some of which is WPSATC.

 

Am I correct?

 

i dont recall the background atm. but, wld think that they wld have to particularise each in their statement of case, and therefore show each as it progresses.

i know that they do 'router accounts' which maybe where they have joined the accounts up, but still wld think that they wld need to substantiate each in a claim.

 

Thanks for that Ford

 

They have never formally particularised the separate accounts, only just now in a WPSATC letter this month (the claim was issued in 2008)

 

Both accounts are still "open" as I have been paying into both accounts since the claim, and receiving statements on the loan account annually, which reflects the payments and a PPI refund, and I obtained copy current account statements only from a SAR, no regular statements/notices issued, even though interest was added

 

Thanks

 

t.

 

They must substantiate and particularise each agreement in disclosure...cant just amalgamate as if its one debt....2 agreements 2 default notices etc etc.

Thanks yet again Andy, you are very helpful.

 

Please see my previous post in response to Ford.

 

Also - did get two notices:

A Default Notice served under Sections 87 (1) of the CCA 1974 for the loan account, and a Notice served under Sections 76(1) and 98(1) of the CCA 1974 for the current account.

 

The current account was the one the subject of a Claim on Mrs t, which has been satisfied now.

 

The amount of the claim is less than the sum of the Notices, as sums were paid off prior to the Claim being issued.

 

Thanks

t