Jade-Simone vs Abbey

[Jade-Simone]

Dear Mad Nick,

 

Since my last post I was called away to do some consultancy work in South Africa and returned only late last week. Is it therefore too late to carry out my court action? My last correspondance with Abbey was the end of March where they gave me eight weeks to respond.

 

I am disappointed that I got so far and have still not gone through with the court action. I still have my N1 ready. Do you think I can still go through with my action given the time that has elapsed? By the way has your action been completed?

 

regards

-JS-

[KnellyK]

HI Jade-Simone

 

If you haven't already sent your claim to court you can submit it any time.

Was your last correspondence with Abbey a letter before action? if it was, as it's your claim you set the time limits and you can alter them to suit your own circumstances.

 

You mention your N1 in previous posts, if you've completed one and not taken it to court you'll need to complete another because the interest total will have increased now!

 

By the way, Mad Nick has won ~ you can catch up with his thread in Abbey successes!

 

Hope this helps.

 

Good Luck!

[Jade-Simone]

Hi KnellyK,

 

Thanks for the info. Yes my last communication with Abbey was my LBA and filled in my N1, I'll redo it then. The added interest will take my claim to beyond the figure set for small claims, does this matter? I had also asked Abbey to remove the default notice from my credit report and they refused, do you have a suggestion as to how I deal with this aspect too? I would like to by the end of this month cleared all issues to do with Abbey.

 

Good to hear about Mad Nick, I'll read his posts later!

 

Thanks!

-JS-

[Jade-Simone]

Hi

 

Since my last post my work situation has taken me away again. I got back this week and I intend on sending my N1 to the court today. I am little unsure now of what I do. My LBA to Abbey was sent sometime in April and their last response was sent early in May. Since I didn't take my action in the time I stated I feel a little unsure now as to how to proceed. My claim plus interest will now be over the £5000 small claims limit, so will it be ok to lodge as a small claim? Will I need to inform Abbey by letter that I am going to take this action or do I just send my N1 and wait for them to respond? I have all my correspondance and responses all ready.

 

Thanks

-JS-

[Jade-Simone]

Hi again,

 

my nearst court is a magistrates court, do I need to take the N1 to a county court?

 

thanks

-JS-

[ICY]

Carry on with your claim, they wont have taken much notice of the LBA anyway, your claim HAS to be filed at the County Court look HERE for your local court

[Jade-Simone]

Hi Icy,

 

Thanks for your response. One last question about my N1. I am a little unsure of the correct figures to use to answer:

 

"Plus interest pursuant to S.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £xx.xx {(enter daily rate here - (CHARGES+OD interest)x 0.00022 = pence per day) }OR at such rate and for such periods as the court deems just."

I am going for the contractual interest but not the 8%, however, the daily rate on my spreadsheet differs from the sum of (CHARGES+OD interest)x 0.00022 = pence per day). Maybe, I'm just being thick! Help!!

Thanks

-JS-

[Jade-Simone]

Hi,

 

Has anyone had experience of having a default notice removed by Abbey as part of their court claim? In the last communication with Abbey in May, they refused to have the default notice removed from my credit report. I would to handle this with my claim. Is there anything I would need to add to my N1 in this regards?

 

Thanks

-JS-

[ICY]

In my claim with CapOne i have included that i am claiming removal of default. I can tell you what I put and you can change whtever you need to. It might be of no use to you, but it if it is make sure someone else checks it too just in cse i have got anything wrong. If you dont add it onto the N1 then you will be struggling to claim it at a later point, make sure even if they pay the full amount of charges that you dont accept as final settlement as until they agree to remove the default, the claim has not been settled. The POC is an extra bit to add in, i put mine between 2 and 3 numbering it 3 and then changing the numbering of the rest of the paragraphs.

 

Brief details of claim

Money claim for return of penalty charges applied to the Claimants accounf by the Defendant.

Removal of incorrectly entered default notice on credit file.

 

Particulars of claim

The Defendant issued a default on the Account in January 2006 despite the account being settled and closed in June 2005 following a successful payment plan arrangment which was made between the Claimant and the Defendant, this plan was completed early by the Claimant.

 

 

Hope this helps

[Jade-Simone]

Icy,

 

Thanks for the info, it's very useful. Good job I checked before sending my N1 to court. I'll add the comments before I take it to court. I notice in the above that you've only included the 8% stat interest and not contractual interest? Is this more likely to be paid?

 

-JS-

[Jade-Simone]

Hi,

 

Do you think I should still lodge my N1 despite the high court case today?

 

thanx!

 

-JS-

[ICY]

YES YES YES carry on as you were, until told otherwise.

[Jade-Simone]

Icy, Thanks for the encouragement. All set and ready to roll!

 

-JS-

[Jade-Simone]

N1 finally submitted today!

 

-JS-

[ICY]

Good luck

[Jade-Simone]

Hi,

 

I received a Notice of Issue from the court today with a note that the defendant has until 22nd August to reply.

 

Do I need to fill in the section Request for Judgment or do I wait until after the 22nd to see wha Abbey's response is first?

 

Thanks

-JS-

[JAMES33]

No, the Abbey has until 22nd August to acknowledge the claim to the Court, if they do this they then have a further 14 days to submit their defence. It is only after these deadlines have passed that you can send in a Request for Judgement if Abbey have not responded. You would have to check with the court first to see if they have received anything and even after the deadline, the court will often accept their defence late and not issue judgement. Have a good read of Abbey threads so you know what to expect as this is standard procedure. Good Luck!

[Jade-Simone]

Thank you, your info is very useful. I'll read as you suggest.

 

-JS-

[Jade-Simone]

Hi

 

Got back from a great holiday yesterday and reading through my mail I have received a notice from the court indicating that Abbey intends to defend the claim, with 28days from date of service to file a defence.

 

Thanks

JS

[Jade-Simone]

Hi

 

In my pile of holiday letters, Abbey had also sent me a letter informing me that they had asked for a stay until the OFT case. So I guess I'll wait until that's over.

 

Thanks

JS

[Lula]

Jade-Simone, just because they wrote to you doesnt mean to say that it will be automatically applied, ring the court and see if they have received anything and you also have the option of appealing against the stay.

[Jade-Simone]

Hi,

 

Just picked up your resonse today so I haven't rung the court yet. I have however, received a copy of the 4page defence that Abbey are applying. Here is an extract:

 

3 " It is denied that those charges payable and that rate of interest applicable upon a customer going into unauthorised overdraft or exceeding an authorised overdraft constitute a penalty at common law. It is denied that those charges and that interest are payable on a breach of contract.

4. The true position is as follows:

4.1 Each and every payment instruction presented by or on behalf of the Claimant to the Defendant which would, if honoured, take the Account into unauthorised overdraft or beyond an authorised overdraft, constituted a request (in law, an offer) by the Claimant to the Defendant for a loan of the requisite amount on the terms set out in the Conditions (alternatively on the Defendant's usual terms as to such overdrafts as at the date of the payment instruction in question).

4.2 The Defendant was free to accept or reject each such request.

4.3 If the Defendant honoured the payment instruction in question, the Defendant thereby accepted the Claimant's offer.

4.4 Accordingly, the Claimant became bound to pay interest and charges in relation to that loan at the stipulated rate.

4.5 That liability does not, at common law, constitute a penalty.

5. It is denied (if it be alleged) that, on a proper construction, clause 6.3 of the Conditions provides that a customer going into unauthorised overdraft or exceeding an authorised overdraft constitutes a breach of contract (for which the customer is liable to pay damages). It is averred that clause 6.3 of the Conditions operates as a trigger to bring into effect certain other provisions of the Conditions.

6. It is denied that those charges payable upon the Defendant dishonouring a payment instruction presented by the Claimant by reason of the state of the Account (namely that had the Defendant honoured the instruction in question, it would have taken the Account into unauthorised overdraft or beyond an authorised overdraft) constitute a penalty at common law. Such charges are not payable on a breach of contract. They are, by clause 6.4 of the Conditions, a fee..."

I have read all four pages but do not fully understand all they have said. Does this look like a standard defence by Abbey? Have others received similar defence responses from Abbey? I am at present working through my court bundle in advance

Also would appealing against a stay be to my advantage?

Thanks!

-JS-

[ohoh4312]

Hi JS

 

This is their new "Service Charge" defence, based on the new T & C's which do not even come into effect until Monday!!

 

Have a look here for advice on this:

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/111050-abbeys-new-service-charge.html

 

Now you need to wait for the Courts' instructions before you do anything else - either the Court will apply a stay, in which case then you can appeal, or the Court will set a Hearing date, at which the bank will probably turn up to request a stay.

 

Either way, with GaryHs' excellent template you will be well armed.

 

Also, I have a copy of the old defence I can send you, to further fuel your argument.

 

Best regards

 

Jo xx

[Jade-Simone]

Hi Jo,

 

Thanks very much for your ressponse, what a relief that it's not something specific to me. I would very much appreciate a copy of the old defence and I will have a look at GaryH's template.

 

regards

-JS-

[ohoh4312]

Hi JS

 

No problem - glad to help!

 

PM me your email addy and I will send it straight over.

 

Best regards

 

Jo xx