Lowell - Bryan Carter - Overdraft re Bank Charges

[Argh!]

Ok so how about instead of going back to the beginning of the account to cover all transactions, we choose some other mid point in time, for instance in my SAR they only provided statements dating back to July 2002

 

If I were to use that date and the information disclosed on those statements, the claim including compound interest to Sep 2009 according to the spreadsheet comes to £7783.81

[AndyOrch]

Yep whatever...as long as it does not exceed £10K....it could still end up in the Fast Track if your CC is greater than the initial claim and there are complex issues...so you should bear that in mind.

[Argh!]

Well the CC (if made) is likely to be considerabaly more than the original claim so what is the likelyhood of it being allocated to the fast track, its just that I couldnt possibly afford to expose myself to the other sides costs should I loose.

 

Is there some way to at least get some of my unfairly/illegally charged charges back without the risks of fast track or would you just recommend defending this action?

 

Or should I be more confident of success as obviously Lloyds TSB saw no realistic prospect of success in taking this to court themselves otherwise they wouldnt have sold it to these chancers for around 10p in the pound!

[AndyOrch]

You could go with just the defence and at mediation try to mitigate as a negation tool or you may submit a CC and see what track the Court allocates to.

You have to pay a fee to CC which would be in the region of £210....this becomes payable when you receive the DQ (Directions Questionnaire) hopefully the N180 and not N181.

 

As stated a counterclaim could have a bearing on the allocation of the trial. If the financial value of the counterclaim is higher than the value of the original claim this could result in the whole claim being allocated to a different track. Therefore a claimant who thinks he has issued a small claims case could suddenly find that the case has been allocated to a costlier and more complicated track because of the counterclaim.

 

Where a counterclaim is made, or where the court’s permission is sought to issue a counterclaim, the court will take into account a number of factors when deciding how to manage the case. The court can refuse permission, strike out the counterclaim or order that it be dealt with as a separate claim.

 

If it was placed in FT then failing to pay the fee could result in the CC being struck out

[Argh!]

The court fee wouldnt be a problem as I am in receceipt of income support I should qualify for remmission. Would that also perhaps qualify me for represention in court?

 

The penalty charges of course were made by Llloyds wheras the claim has been brought by Lowells so if I issue a counterclaim against Lowells how would this sit with the judge?

 

Presuming I won, could he/she order that Lowells and/or Lloyds repay the penalty charges

[AndyOrch]

The court fee wouldnt be a problem as I am in receceipt of income support I should qualify for remmission. Would that also perhaps qualify me for represention in court? No

 

The penalty charges of course were made by Llloyds wheras the claim has been brought by Lowells so if I issue a counterclaim against Lowells how would this sit with the judge? Lowells are now the legal owners of the debt and all the responsibilities that come with buying defunct debts.

 

Presuming I won, could he/she order that Lowells and/or Lloyds repay the penalty charges

Most probably set off against the claimed amount.

[Argh!]

So if he/she set it off against the claimed amount what would happen to the residual amount?

[AndyOrch]

You would be credited by cash the difference plus your costs.

[Argh!]

You would be credited by cash the difference plus your costs.

 

By Lloyds?

[AndyOrch]

By Lowell its their claim....LLoyds are not suing you.

[Argh!]

They wont be very happy with that!

 

 

OK if you can possibly help me with preparing the Counterclaim paperwork and my defence (I'm presuming I still defend if I counterclaim) then I think I will go down the counterclaim route.

 

I think I have a more than reasonable prospect of winning, my only concern is if they send a smart alec barrister who might try and twist me in knots in court.

 

Do you know of anyone who might be prepared to represent me in court on a no win no fee basis (perhaps you may be interested in this yourself?) should it get allocated to the fast track?

[AndyOrch]

We can assist in the preparation of a defence and Part 20 counter claim...but firstly you need to research and read other threads on reclaiming bank charges...its not a walk in the park and any counterclaim will have to have merit and be based on law as to why you deem the charges to be unfair.

 

CAG can not recommend any representation i'm afraid as its against Forum Rules.That is a matter you would have to undertake yourself.

 

Regards

Andy

[Argh!]

...but firstly you need to research and read other threads on reclaiming bank charges...its not a walk in the park and any counterclaim will have to have merit and be based on law as to why you deem the charges to be unfair.

 

 

Thanks again for that Andy

 

I have read through the forum extensively but as yet I havent found any cases which parallel mine and involve a counterclaim.

 

The sites search facilities (unless I am using them wrongly) seem to be a little poor and seem to throw up everything containing every search term I input?

 

Can you or someone else perhaps point me to some threads I can at least make a start with?

Edited March 11, 2014 by Argh!

[AndyOrch]

I would start here in the Successes Forum...pretty sure there are some defended and counterclaimed threads.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

[Argh!]

Ok after sitting down and reading for hours and hours trying to find some relevant information on reclaiming charges at this point in history, my heads now spinning and I'm getting nowhere fast.

 

I have found some pointers which need further investigation/research but it will need many more hours of work/research.

 

I am also mindfull (and getting ever more worried) that my last day to file a defence is tomorrow (12 Feb) and have also only just discovered that the MCOL system only allows you to input a certain number of characters into the defence field so my defence is now going to have to be reasonably explicit/compact, as its too late to post it off now

 

So... do I also have to file my counterclaim by this date or can it be filed separately later on in the proceedings? If so up till what point?

 

I have found a defence that I think will suit (I think/hope its one of yours Andy ), I am going to tailor it slightly to suit and post it up shortly to see what you think and if any alterations need to me made.... hopefully it will fit on MCOL

[Argh!]

My Draft Defence

 

 

1. It is admitted with regards to the Defendant entering into an Agreement referred to in the Particulars of Claim ('the Agreement') with the original creditor Lloyds TSB Bank.

 

2. The defendant denies that the account exceeded the agreed overdraft limit due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

 

3. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

4. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

5. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.

 

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 4 March 2014 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Edited March 11, 2014 by Argh!

[Argh!]

Brigadier2JCS make an excellent valid point, although I'm not sure what if any legislation this comes from?

 

A default should not be placed where the default sum is made up of charges without which the account would not have defaulted.

[Argh!]

Good Morning Andy

 

If you have a minute could you please cast an eye over posts #40 #41 & #42 above.

 

I have to get my defence in by today at the very latest and want to make sure everything is as good as it can be.

 

The character count is 2521 at the moment so I believe there is still plenty of room to add a few things if you want too

 

Many, many thanks in anticipation

[AndyOrch]

Defence is excellent Argh a lot which seems familiar

 

With regards to the counter claim you submit that the same time otherwise it requires permission of the court to submit further into the proceedings (which involves an application and fees etc)

So subject to your decision it would be quite easy to tag a Part 20 on to the defence assuming you have your figures /interest/ and sec 69 interest ready.

 

Regards

 

Andy

[Argh!]

Defence is excellent Argh a lot which seems familiar

 

Phew thats a relief!.... Yes the vast majority of it is derived from your own hard work To which I owe you a million thank yous' :thumb:

 

I have my figures but I think its probabaly best to put the counterclaim on the backburner for now whilst I fully familarise myself with any complications. What do you think?

[AndyOrch]

I think that would a wise decision pending the outcome the claim...you could always instigate your own claim at a later date more convenient to yourself...challenging Bank Charges is no mean feat.

 

Copy and paste the above into MCOL and print your receipt as proof of submission.

 

Regards

 

And

[Argh!]

OK will do, I'll let you know how things progress

 

Thanks once again

[Argh!]

Latest Developments

 

Received two letters from Carters

 

First letter received 10+ days ago reads

 

..........."As you will be aware, a claim was issued on XX February 2014. Further to this Judgment in default of Acknowledgement was entered in the sum of £xxxxx on 5 March 2014 and you were ordered to pay installments of £50.00 per month commencing 4 April 2014 in order to clear the Judgement sum."...........

 

 

My defence was accepted, no default judgement had been entered and no such order had been made. This was a blatant lie..... can they be taken to task for this?

 

 

Second Letter received today reads

 

"Please see attached copy letter sent to the court confirming that the claimant wishes to proceed with the claim at this time.

 

The claimant agrees in principle to mediation.

 

We should also be grateful to hear from you in realation to without prejudice negotiations and you may contact us on 08xxxxxxx"

 

Their atached letter to court reads

 

"Thank you for providing us with the defendants defence.

 

Our instructions are that the claimant wishes to proceed with the claim.

 

We look forward to hearing from the court with directions"

 

 

Comments please??

[AndyOrch]

Well the first is BS nonsensical missive assuming you wouldn't dare defend...the second is his whoops.... would you like to talk and try to agree settlement......you may get a third shortly offering discontinuance of the claim so dont be in a rush to respond to letter number 2.

 

Regards

Andy

[Argh!]

Thanks Andy for your last reply

 

Received yet more mind games from Carters today, your analysis as always greatfully appreciated