Eversheds/NatWest Joint Bank Account Overdraft Court Claim - Advice Please

[AndyOrch]

Well if its stayed then the Claimant as to make application to lift it and proceed.But you state 'at any time' get a judgment 'by default'.

so I cant be stayed and if not you need to make application/ take action subject to were you are at with the claim.

 

Andy

[radmm0]

We made a CPR 31.14 for each claim in early July (one is in my name and the other in my wife's name). The claimant's solicitor replied in writing and stated that until they receive the document(s) we have requested from their client, they will not take any further action - that was in late July! So, would a judge still be able to make a 'default' judgement against a defendant with this assertion from the claimant's solicitors in writing to both of us - we have received separate letters of course. We have informed both courts in writing about the fact that we're unable to put a defense together, as we are awaiting a response from the claimant's solicitor with regards the document(s). We haven't heard anything from the courts in response to these letters. However, my calls have revealed that one court is effectively regarding the claim as 'stayed' - not going anywhere was their statement, and the other court stated that the judge could make a default judgement.

 

It is important to note the following:

 

Both claims were originally issued from court 'A' (far away from us) and we subsequently requested for the cases to be transferred to our local court when we sent back the AoS for each case. Court 'A' transferred my case to court 'B' and I have since confirmed everything with 'B'. But, court 'A' have failed to complete the transfer to court 'C' for my wife's case, even though we have had a confirmation letter from court 'A' that the case has been transferred to 'C'! The recent telephone communication with court 'C' has revealed that the case HAS NOT been transferred to court 'C' and is still with 'A'. It is this final contact with court 'A' that has revealed the 'potential' of them entering a 'default judgement'.

 

So, surely court 'A' has failed in its CPR for the case and any 'default judgement' entered by a judge at court 'A' would be suspect and should be thrown out? Or am I barking up the wrong tree?!!

 

Rgds.

radmm0

Edited September 28, 2011 by citizenB
formatted for easier reading

[AndyOrch]

You need to check on your wifes, the one not transfered as to why its not been transfered( I assume to were yours is Court B?)

Am I right to assume yours is stayed and your wifes is the imminent one?

When they wrote to to say they would not take any further action you have that in writing separately for both claims.

Now for one claim to be stayed and one not considering you both AoS to court A would suggest that the Claimant may have informed the Court on yours but not the other.I assume that neither as had a defence entered on both.

 

Andy

[radmm0]

Thanks again for your quick responses.

 

Court 'B' (where my case has been transferred and confirmed by telephone) didn't mention anything about the case being 'stayed' or having heard anything from the claimant, just that it is not going anywhere. Does this effectively mean it has been 'stayed' by default after a certain time? If not 'stayed', then do I have a good case for applying for a Strike Out (with reference to my earlier posts today)?

 

My wife's case is very similar, only that the original court 'A' seem to be holding on to her case, even though we requested a transfer to a local court and we have had a confirmation letter from court 'A' stating that the case has been transferred to court 'C' in July - but, of course we know now that it hasn't. So, as I stated in my previous reply, does this not effectively stop court 'A' in taking any default decisions/judgements on the case due to their errors and the claimant's letter to us stating that they won't be taking any further action until they provide us with the document(s) we requested using CPR 31.14?

Also, aren't there other rules/laws in play now, since the claimant has failed to provide the evidence requested using CPR 31.14 in the time allowed? Don't we have every right to ask both courts to 'strike out' the cases? Surely judges/courts aren't that stupid to waste their and our time & money in entering a default judgement in my wife's case - are they?!

Rgds.

radmm0

[AndyOrch]

The normal process would be, lets say they had issued from CCBC (Northampton) claim served.You would complete your AoS and if defending submit a defence within 28days.Its only when you submit that defence and the Claimant responds and acknowledges does the claim then get transfered to the local County Court which would then issue AQs for completion to decide and allocate to track.If the Claimant didn't respond to a defence then it would be stayed.

In your case only a AoS as been entered and I would assume you have passed the defence due date.How did you ask or file,what method did you use to request transfer.?

Reading between the lines it would appear that the Claimant as honored his word that they would not do anything because he would be entitled to request judgment on both claims by now.

 

Regards

 

Andy

[radmm0]

We requested the transfer when sending each AoS back by including a letter informing the courts of our new address, asking for the transfer and informing them of our inability to lodge our defense until the claimant presents us with the document(s) we had requested.

 

Isn't the fact that the claimant has failed to produce the document(s) to back their PoC make the court claim invalid/stayed by default, even if the claimant wanted to take action and ask for a default judgement?

 

I reckon some of the admin staff in these courts don't really understand/follow the correct procedures and get themselves in a state, hence why my wife's case is still with court 'A' even though they have sent us a letter confirming its transfer to our local court 'C'! From what you have stated in the previous post it is obvious that NO transfer should be initiated until a defense has been lodged. So, the admin in court 'A' is breaking their own rules and procedures, since my case has definitely been transferred to another court (local court 'B'). But, they have managed to completely screw-up my wife's case by sending us a confirmation of transfer letter, but then not actioning the transfer!

 

What would you recommend is the best course of action now - for both of us? Should we make ANY contact with the claimant's solicitors about any of the above?

 

Rgds.

radmm0

[AndyOrch]

In all honesty I think if they were going to disclose they have had ample chance by now and perhaps an application may be prudent

to either force disclosure/ extend the defence time/ and in the event of non compliance with either to strike out both claims.You make application using the N244 and complete it with your directions.I wouldn't imagine an hearing would be necessary so tick without hearing and pay £45 per application..

 

Regards

 

Andy

Edited September 29, 2011 by Andyorch

[radmm0]

Hi Andyorch

 

We have today received 'default notices' for the bank overdraft in joint names (separate notices) and a separate one for the bank loan, which is in my name only. So, that's 3 letters in total.

Just wanted to know if they're re-starting the legal process from scratch and if so can they do this if we have already proven that the debts are unenforceable since they couldn't produce the document(s) requested in their original PoC? i.e. can they take us to court twice over the same debt or would they somehow use the same case(s) raised in July 2011 to pursue us?

 

Just came across the following in another post on CAG:

 

'Just been looking at Henderson.....'Henderson -v- Henderson – 1843 – Sir James Wigram VC – Litigation Practice

The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.

Sir James Wigram VC said: “ Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'

 

Would this apply to our case? Any advice/help would be much appreciated. Thanks.

 

Rgds.

radmm0

Edited November 5, 2011 by radmm0
Additional relevant info to explain post

[citizenB]

Hello radmm0

 

Andy is taking a well deserved holiday and will be back on the 9th November.

 

I think the quote you post from Henderson v Henderson is correct.

 

 

I will have a read back over your thread to see what has happened so far.

Aside from which I do not believe they are able to litigate on the same issue a 2nd time.

[radmm0]

Thanks a lot CB. I just can't understand what they're up to, as they (NatWest themselves NOT their lawyers) have actually sent the letters to our old address (we moved in July and told them about our new address)!

Will wait for your next post with any ideas or suggestions. Thanks again.

Rgds.

radmm0

[citizenB]

Aha, right. Well it would appear this hasnt actually been decided in court , the claims were just stayed whilst the documents were "found".

 

It is interesting that you say Default Notices have been provided for the overdraft because none is actually required for a bog standard bank account overdraft! So on what date have they produced these??

 

The Loan, does require a Default notice, again, what date have they produced this from ?

 

Is there any chance you can scan them in and post them up so we can have a looksee. Do please ensure that any personal information is removed first.

 

If you can convert your scans into pdfs then that would be best.. rather than using an image hosting facility. Instructions for doing so are provided below, courtesy of dx100

 

Dx100 – Instructions on uploading pdfs

scan the required letters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

[citizenB]

Thanks a lot CB. I just can't understand what they're up to, as they (NatWest themselves NOT their lawyers) have actually sent the letters to our old address (we moved in July and told them about our new address)!

Will wait for your next post with any ideas or suggestions. Thanks again.

Rgds.

radmm0

 

Hmmm, so it is the bank who have sent these out? It does rather look as though they have forgotten there is a claim stayed. But to send them to an incorrect address is a bit naughty.

 

Did you ever do a Subject Access Request? If not, now might be the time, at least you will be able to confirm that you did give them your new address. The fact that having been advised of that and then they go sending correspondence to a previous address will be something you can put in the black mark box

 

For my own peace of mind, I would phone the courts on Monday and just simply ask what is the status of the claims?

 

I would think if there was any plan to move ahead then the solicitors would have contacted you.. but do check with the court to make sure.

[radmm0]

Thanks a lot for your replies CB, I'll be getting going again with this case tomorrow. In the meantime, do you think it may be worth writing to the claimant's solicitors and asking them what is going on? I have only dealt with them in writing since they raised the claim and only they have responded to our CPR31.14 requests. Nothing direct from the bank.

I'll also upload the DNs for your attention. I think they may be starting the whole process from scratch, as they may have found what we have asked for. But, as you state, why would they go through the whole thing again when they have a case that is still open in the courts?! Could it be that they couldn't respond with the right information in time allowed by the CPR request, so they know that a DJ would not consider their case even though neither they nor us have cancelled the claims, thus they have initiated a new case by issuing the new DNs?

Can a creditor 'issue' two separate DNs at different times for the same debt?!

Thanks again for all your time and help.

Rgds.

radmm0

[radmm0]

I have attached the DNs for the Loan and the O/D. See what you think. Thanks & Rgds.

radmm0

NatWest-OD-DN-AA002.pdf

NatWest-LN-DN-AA001.pdf

[citizenB]

Righto, well I dont see that they can actually issue a default notice AFTER having issued a court claim! This should have been done prior!!

 

I think you need to understand what has happened so far.

 

They issued a court claim against you. Presently it is stayed.. meaning no action is being taken on it at all. Either party can ask to have the stay lifted in order to proceed. NatWest will need to pay a fee to move it on to the next step.

 

You can ask for the stay be lifted in order to apply for a strike out of the claim.

 

I think at the moment, we need to wait and see what Andy has to say on the situation. Especially about this Default Notice being issued.

 

Until then, or until someone with more knowledge comes along, I think you need to leave things as they are (especially if you have confirmed with the court that the claim is still stayed). I dont think you should start prodding them until you know exactly what you are doing.

 

I will flag your thread to see if anyone on the site team has any ideas.

[citizenB]

Thanks a lot for your replies CB, I'll be getting going again with this case tomorrow. In the meantime, do you think it may be worth writing to the claimant's solicitors and asking them what is going on? I have only dealt with them in writing since they raised the claim and only they have responded to our CPR31.14 requests. Nothing direct from the bank.

I'll also upload the DNs for your attention. I think they may be starting the whole process from scratch, as they may have found what we have asked for. But, as you state, why would they go through the whole thing again when they have a case that is still open in the courts?! Could it be that they couldn't respond with the right information in time allowed by the CPR request, so they know that a DJ would not consider their case even though neither they nor us have cancelled the claims, thus they have initiated a new case by issuing the new DNs?

Can a creditor 'issue' two separate DNs at different times for the same debt?!

Thanks again for all your time and help.

Rgds.

radmm0

 

They cant issue a a claim from scratch.. without first discontinuing the one in play.

 

If they do, then that is an abuse of process.

 

Once the claim was issued, then any communication from both you and the claimant should go through the solicitor.

 

If a new claim had been issued, then you would have received the paperwork from the court.

 

Did you telephone the court to confirm that the original claim was still stayed ? If not, do that tomorrow.. Keep a record of the call, date and time and what was said. The question is quite simple, "What is the status of the claim at present"

 

HTH

[radmm0]

They haven't started a 'claim' as such, but I reckon they're starting the whole money recovery process from scratch with the right documentation(s) so that we can't do the same as we did to their first claim, which effectively made the debt 'unenforceable'. Can they do that, i.e. start with a new set of DNs by giving us the same details as the previous DNs issued earlier this year without first confirming that the court case has been 'cancelled/set aside' through their solicitor? Or, as you said earlier, may be they have forgotten that there is already a claim on these accounts?!

So, the claimant wouldn't have to contact us via their solicitor if they're starting the 'recovery' process from scratch, would they?

Also, if they did now have the right document(s), then why didn't they just continue with the current claim? I'm really confused!

I forgot to mention that each DN has a 'Customer Financial Statement & Repayment Proposal Form', but the letters/DNs don't make ANY reference to these. There's also the fact that they have sent the letters to our old address, even though we have given their solicitor the new one (in July). This makes me think they haven't been in touch with the solicitor since they have used our old address.

Any help re the above would be much appreciated while we're waiting for andyorch to return. Thanks.

Rgds.

radmm0

[citizenB]

Are you saying, that apart from the date, the details in the 2 recent notices are exactly the same as the previous ones ?

 

If so, then I do not see the point in them having issued them again. They clearly state that if the breaches are not remedied by the dates shown then they will terminate the accounts and ask for the full amounts.

 

They did this when they issued the claims. Theoretically, there are no live accounts on which to issue those Default Notices ?

 

What does bother me is their insistence on sending stuff to your old address, when you say you have advised them of the new address.

 

I really think you need to wait on Andy, so he can reassure you..

[Undercover-Elsa]

Hi,

Sorry, only just had chance to have a look at this thread. Dear me, what a set of idiots Natwest are, this is such a mess!!

 

I'm concerned at the legality of transferring the Chargecard debt to the overdraft without you specifically agreeing to it, although as it's a special type of current account lined to the card is that specifically "allowed" in the T&C's? If so one wonders whether it can be argued as an unfair term.

Normally I don't think it would be permissable unless there's a credit balance on the current account. Maybe query this with the Financial Ombudsman?

The first image in the uploads relating to the overdraft isn't a Default Notice issued under section 87, it's simply formal notice that they will add a default to your credit file.

The second image relating to the loan is a DN, and is compliant as far as I can see except for the priceless fact that it was issued AFTER the claim.

I'll be interested to see Andy's comments.

My own gut reaction is to go for a strike out for non disclosure and issuance of procedings without a DN, and immediately make a complaint to the FOS about the balance transfer to an overdraft.

Elsa xx

[Undercover-Elsa]

Just done a little research after giving the builders a cup of tea to shut them up...

 

With regard to the right of set off of a sole debt from a joint account...the Financial Ombudsman would have something to say about this. To quote from a complaint in this respect:

40/1

transfer from joint account to pay debt on sole loan account

 

Mr G, an elderly widower, needed help with his financial affairs. He decided to make his daughter, Mrs B, a joint account holder on his current account. In that way, she could pay bills for him. It would also be easier for her to tie up his affairs after he died.

Some time later, Mrs B took out a personal loan with the same firm. Her father was quite unaware that she had difficulties paying the monthly instalments, and that the firm eventually called in the loan. Because Mrs B was unable to repay the money, the firm transferred funds into her loan account from the joint account she held with her father.

When she discovered what had happened, Mrs B was extremely upset because it meant that she had to tell her father about her financial problems. This was not only an embarrassment for her – it became a serious worry for her father.

When she complained, the firm defended its actions, telling her that the terms and conditions of the joint account allowed it to transfer the funds from the joint account. Unhappy with this, Mrs B then brought her complaint to us.

complaint upheld

The edition of the terms and conditions that the firm referred to was the most recent version. It had been issued some years after Mr G had opened his current account – after Mrs B had become a joint account holder and after Mrs B had taken out the loan.

Mrs B did not recall seeing the leaflet containing the updated terms and conditions. However, she accepted that she might well have received a copy as part of a regular mailing from the firm – probably with her monthly statement.

We noted from the latest version of the terms and conditions that there was a term allowing the firm to take money from the joint account to pay debts owed solely by Mr G or by Mrs B, as well as to pay debts owed by them jointly. However, we thought that this was such a radical departure from the normal position that it was an "‘unusual" term. It was also an " onerous" term, because its effect was to make Mr G liable for Mrs B’s debts.

A firm can only rely on terms that are "unusual" and "onerous" if they have been brought fairly to the customer’s attention. The Banking Code says that customers must be given personal notice of any terms that are to their disadvantage. We did not think it enough for a firm simply to include the revised edition of the account terms when it sent out routine statements to its customers, which is what had happened here.

We also thought that the term was "unfair" within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999. This was because it created a significant imbalance in the parties’ rights and obligations, to the detriment of customers. Specifically, it had the effect of making Mr G a guarantor of Mrs B’s debts – but without giving him the information that a guarantor should usually be given.

We told the firm to transfer the money back to the joint account – leaving it to find other ways of recovering the money that Mrs B still owed.

 

 

As mentioned above, I really think you need to involve FOS in this. Certainly I think their rulings on similar issues would help if referenced in defence. I also believe they can only set off against a CREDIT balance, not an overdraft, but not sure on that, but you might like to research that further. Might depend whether the set off took the account over an arranged OD limit.

Here's the link to the FOS page onright of set off.

 

 

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/40/40_setoff.htm

 

Elsa x

Edited November 9, 2011 by Undercover-Elsa

[Undercover-Elsa]

Furthermore, on rereading this morning, given a similar ruling by the FOS in your own case, Natwest would have to return the money from the joint account to the card...the card which has no agreement...

[AndyOrch]

Hi Radmm

 

Ok after a quick digest they have simply issued the DN and Recall notes to facilitate their existing claim, its not a fresh attempt or new claim.

They will now no doubt make application to lift the stay and proceed.

A couples of pointers have you ever received the original notices? and without checking does their PoC refer to a breach and date? and lastly are the amounts described within the breach/recall correct?

 

Regards

 

Andy

Edited November 10, 2011 by Andyorch

[radmm0]

 

A couples of pointers have you ever received the original notices? and without checking does their PoC refer to a breach and date? and lastly are the amounts described within the breach/recall correct?

 

 

Welcome back andy and thanks for your response.

 

The only 'notifications' (not DNs) were letters received from their internal buds Triton who repeatedly threatened to take us to court by instructing their lawyers if we didn't pay at least X amount per month (unfortunately these were mostly on the phone with them & Eversheds - early days of being very naive and not CAG savvy unfortunately).

 

On the PoC there's the standard 'breach' statement regarding a DN & CCA 1974, but no mention of a 'date' on the PoC only the amount(s) that are owed and the fact that they are entitled to add interest as they wish - yeh, it's a free for all to grab their losses from the public - but don't we actually own these idiots anyway, who have announced a massive £3bn profit last week?!! - come on Mr Ombudsman sort these guys out once and for all.

 

Very importantly, the amounts on the recent DNs are different to the amounts quoted in the original PoC, but what do you mean by 'are they correct'?

 

Rgds.

radmm0

[AndyOrch]

Simply do they equate to the summons amount/ statements amount all must be the same (even if incorrect)

 

Andy

[radmm0]

No they are different. The latest figures in the DNs are more than the original amounts quoted in the PoC.

btw, do you mean the amounts in the DNs by 'statement amount'?

Rgds.

radmm0