James33 Taking On Abbey

[JAMES33]

Thanks MichaelBrown - that makes me feel a bit better already! And thanks to you too Charleyfarley - you have been so supportive of me all the way through this seemingly never-ending journey (along with many other wonderful people on this site!) It's hard to stay feeling down for long.

[JAMES33]

On a totally different subject - I have been trying to reclaim charges from Littlewoods catalogue since April, sent preliminary request in May and Letter Before Action in June and just received standard letters from Complaints Dept in response. Consequently, I prepared court documents and decided to send them a copy to give them a last chance to settle giving them 14 days before I file at court. Received a letter from them today (day before deadline was up!) they set out a list of all the charges incurred on my account and end the letter by saying :

 

Under the circumstances the company is not prepared to refund any charges.

It is made clear in the "your account" section at the back of your catalogue that a charge is applied should you fail to make a payment, and as such I am satisfied that the charges applied to your account are fair and reasonable.

We are aware of the statement of the OFT's position regarding fair charges. For the reasons given above, we are satisfied that the charges applied to your account are justifiable in accordance with the views of the OFT and are fair within the Unfair Terms in Consumer Contracts Regulations.

As your complaint is in relation to an event before 6th April 07 unfortunately, you are unable to refer your complaint to the Financial Ombudsman Service (FOS) as credit complaints did not come under its jurisdiction until this date. I feel it is appropriate to point out that, if you do decide to refer to FOS, it is unlikely that they will consider your complaint. However, they will require you to confirm that we have issued a final response and to that end you may consider this letter as our final response.

Basically, I wondered if what they say in their letter is correct and also should I just file my claim at Court now? I'm sure it seems like a silly question and I wouldn't hesitate if it was the Abbey but I am unsure of the procedure against catalogues.

 

Many thanks and apologies for the long post!!

[ogrebear]

I received exactly the same paperwork as you James- the Judge himself ordered the stay and Abbey had put no paperwork in at all.

 

Its depressing to think of all the time and effort to get the bundle together only for the whole thing to get put on hold, esp when the bank didn't do any work themselves!

 

I intend to phone the Court and find out if its worth applying for the stay to be removed given Abbey failed to obey a Court direction.

 

Even if we have to wait I believe we will win the Test Case and its a just a matter of time before they pay up.

[JAMES33]

Hi all! - Have a bit of an update on my claim at long last. As I mentioned above, when I received the letter from Court informing me that my case was stayed, I sent back a long letter saying how disappointed I was to have a stay at this late stage and setting out my reasons for disagreeing with the stay. I also sent further documents which I was going to add to my bundle following the updated version on this website with the more detailed witness statement etc. I have today received the following order from the Court:-

 

Upon the Claimant objecting to the order dated 28th August 2007

 

Ex-parte

 

IT IS ORDERED THAT

 

1. The Claimant's letter dated 28 August 2007 be treated as an application to lift the stay which is listed for consideration on 4 October 2007 @ 2pm with a time estimate of 15 minutes.

 

Dated 05 September 2007

 

What does anyone think about this? When I phoned the Court this afternoon, they said it would be in my interests to attend and that I should take any documentation I feel would help me argue my case. Does the fact that the Judge has listed this for consideration mean that there is a good chance he will lift the stay or do you think they are just going through the motions and there is not much chance of success. Has anyone else attended something like this and managed to have the stay lifted. Any idea of what I should take with me apart from my original bundle? Sorry for all the questions but if there is any chance at all of getting this stay lifted I don't want to blow it now!

 

Many thanks:)

[charleyfarley]

J,

 

I think this is a positive move by the Court, and work on the theory that if you don't ask you don't get.

 

Because there's been so few courts still hearing cases, and lifting stays, I would try and find as many examples as you can from all the forums, of those courts still dealing with cases, and those lifting stays, and quote them at the hearing.

 

Also, it would help if you were in a position to show that this case has caused financial hardship, and that this is a reason for lifting the stay.

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/113839-my-stays-been-lifted.html?highlight=stay+lifted

 

I'll keep thinking of other supporting information to take, but good luck on 4th:)

[JAMES33]

Thanks for that CF! Glad you're still around - haven't "seen" you for a while;) Yes, I have been scouring threads for the last 3 hours and have been busy copying and pasting loads of info that I've found so far and will continue to do so. So much information on here, my head is spinning already, I will plod on and prepare as well as I can for 4th Oct.

[psm]

Nice one James33. Good to see a good old fashioned letter of complaint still carries some clout. In preparing for the 4th concentrate on what you argued in your letter, that must have struck a chord with the judge for him/her to revisit the case. If you had a Breach of conract defence from Abbey hammer home the point. The DJ in my case looked at the defence submitted by Abbey and at my breach of contract arguement in my witness statement, she was particularly taken with the estimates contained in the Austrailian commission report and the BBC estimates. If you look on my thread i have posted the latest order from her that might be useful. I hope it goes well for you on the 4th and you at least get to have your say. If all else fails direct your next complaint letter to Lord Justice Moore-Bick who wrote to all DJ's suggesting they stay most bank charge case till the OFT case concludes

[psm]

Keep it simple james33, build on what you put in your letter that made the DJ look again. Remember you have to understand and present your arguements if you are unsure of your facts your are vulnerable. It is nerve wracking enough without introducing legal arguements that may not be valid.

[charleyfarley]

Hi J;)

 

 

How are you doing with your preparation for the 4th,hun?

[JAMES33]

To be honest I haven't really done anything yet - have got an exam coming up which I am busy revising for. I am taking psm's advice and concentrating on the issues I brought up in my letter to the judge, I am pretty confident that I understand the arguments I am using, I just need to have a good read through and prepare copies of everything I am going to use. I have only been allocated 15 mins so I am not preparing a long speech or anything - short, sharp and to the point! I don't expect the stay will be lifted anyway, I'm not suffering financial hardship or anything. One thing I am hoping to get the Judge to agree to is to prevent Abbey from adding any more interest or charges to my overdraft which is being cancelled in October and to prevent them from putting adverse comments on my credit files until after OFT case is settled. Thanks for asking CF

[psm]

Hi James33

 

Have sent you a PM

[JAMES33]

I am in court tomorrow to apply to have the stay lifted in my case. I have only been allocated 15 minutes so I am aiming to be very brief and to the point. I have prepared a bullet pointed list of my main arguments against the stay and have done copies of documents backing up each part of my argument. I have stuck to the main points covered in my letter complaining about the stay. I don't really expect the stay to be lifted, part of my argument is psm's case where the judge lifted part of the stay so I will concentrate on that. Also I am arguing that it is unfair that the Abbey can continue to add charges and interest to my account while I am prevented from challenging them due to the test case and am asking the judge to consider amending the terms of the stay to prevent Abbey from charging me for being overdrawn as they cancelled my overdraft on 1st Oct. I am sure I have read someone else did something similar but can't find it so can anyone help with this - is this worth even trying!?!

[psm]

This is from Sue Loftus thread posted recently:

 

Hello all

 

Sorry for not reporting back sooner but I was disappointed and didn't want to put a damper on things.

 

Was seen by a really lovely Judge at Bow County Court (Abrahams) who stayed the claim (no surprise there) but was actually very pleasant and fair. The gist of what he said to me really was that if I had another argument other than the Unfair Terms he might be able to make another order but unfortunately everything I said he took to come within the Unfair Terms action with the OFT. However, I did make him smile when I told him I was angry with the Abbey for sending me 8 letters on one day at £32 per time and did not give a monkeys that I was on unpaid maternity leave at the time!

 

Judge Abrahams did make an order in the case before mine though that the Abbey should stop charging a claimant the fee of £32 until the OFT case was settled in case it was deemed illegal - result for that chap even if he did stay his claim!

Hey ho, it was worth going to court just to oggle the Judge! I'm going to sit back now and wait for the OFT case to sort itself out and enjoy the interest accruing on my claim. Thanks for all your support leading up to the hearing folks.

 

Sue x

 

Hope this helps

 

PSM

[chelseaboy]

Hi James, all looks fine to me, in your position i'd be using the same points and highlighting psm's partial lift, I think alot of judges don't want to set precidents if they can help it, so generally do a good impression of a flock of sheep, unfortunatly I can be a bit blunt at times so as well as all the above i'd probably be pointing out the fact that our great judicial system is supposed to be fair to all parties and also needs to be seen to be fair, therefore why is it that I am being blocked from seeking justice whilst the desputed fees can still be levied, causing you even more financial hardship and the fact that it looks like the bank is punishing you for claiming by removing your OD, the way to play this argument is to keep saying this is what it looks like and not this is what it is, because you'll get tied up in knots if you play it as facts, play them at their own game, you've got nothing to lose. oh & take your time, don't panick and get your points across clearly. keep smiling, Chels.

[chelseaboy]

As psm posted above (popped up whilst I was typing) if you can get the charges stopped until the 'test case' that'll be better than nothing and there really is no reason why the Judge can't order that, so play it by ear, if it looks certain that the stay is going to, well stay, fight hard to get the charges stopped... Good luck. Chels.

[JAMES33]

Thanks so much for your help psm and chelseaboy! I really hope the Judge will stop Abbey from adding any more charges etc to my overdraft, that is my main worry really as if it takes a while for the OFT to settle the test case (if it even goes ahead at all!) they could add hundreds of pounds of charges and interest and I am determined not to pay them a penny more than they have taken already. BTW does anyone know if the Abbey usually send someone along to represent them at these hearing to lift a stay or is it likely to be just me and the Judge?

[charleyfarley]

J,

 

Just a quick post to say hi and hope everything goes ok for you tomorrow. At ohoh's similar hearing some smarmy muppet turned up to defend, so be prepared for them. Also, while some of the Judges appear to be overbearing and arrogant, some can be supportive and reasonable, so i do hope you get a good one.

 

 

good luck hun:) :)

[TUTTSI]

Wishing you all the best for tomorrow! we are are routing for you.

DS

[ohoh4312]

Good luck tomorrow hun - fingers crossed you get a good Judge!

 

I will be thinking of you

 

Jo xx

[JAMES33]

Well, I am back from court. As expected I didn't manage to get the stay lifted. Both the Barrister and the Judge were very friendly and informal. The Barrister approached me as I was waiting to go in and gave me a copy of an order made by a civil judge, Judge Mitchell in the Canterbury court in which he refused to lift stays on several cases being heard at the same time and giving details reasons for doing so. He mentioned the fact that I had, in my letter to the Court noted that Abbey had admitted the charges were imposed due to a breach of contract and that this meant that my case did not fall entirely in the remit of the OFT test case and could be heard according to principles of common law. He admitted that Abbey had made an error here and that they had now changed their terms and conditions accordingly and drawn up a new defence for recent cases. I said I was well aware of this and that I felt these were underhand tactics. I said that the charges were imposed on my account under the old terms and conditions and I still had the proof in Abbey's defence. His opinion was that the terms and conditions did form part of the OFT test case and therefore could not be heard separately and therefore the stay should remain. At this point I said I thought we should leave it to the Judge to decide and we were then called in.

 

The Judge seemed very friendly and sympathetic towards me. I did not feel at all intimidated. He went through the main points of my letter and then asked me if there was anything I wished to say. I had prepared my argument and asked if it was okay to read from my prepared sheet as it was a very brief outline of the main points of my argument. I was given plenty of time to read this and to provide each of them with the copies of the documents to back up my argument and the Judge listened and commented accordingly as I went along.

 

When I had finished he told me that although I had prepared a very good argument which was clearly set out, he had his hands tied somewhat as precedents had been set in higher courts where in similar cases to mine, stays have not been lifted. He commented about psm's case in Woolwich that although that particular judge had decided to lift part of the stay, no precedent had been set and that each judge had to make their own decisions based on information they had and how they interpreted cases in civil and high courts which did set precedents. In my case he could not see any benefit in just carrying on with the breach of contract part and the barrister commented that if the judge did do this, Abbey would most likely apply to amend their defence and remove any reference to a breach of contract anyway. The judge said it would be in everyone's best interests to keep the stay in place and see what happened in the test case so that there would be a definitive answer as to whether the charges are lawful or not. He did mention here "if indeed it does go ahead at all" as he said he had read news reports that the parties were trying to reach some sort of compromise! I said that I had heard that too and asked what would happen if this were the case and he said that the stay would then be lifted and my claim would be reinstated. I had got the copy of the BBC News website story about the OFT case and he asked to read it and said that it was the same story he had read. I commented that it was very frustrating that the facts surrounding the test case seem to be hidden from members of the public such as myself and that all we had to go on were news reports and letters from the banks themselves and that it was hard to decide what the truth actually was with so many different stories going round and he agreed. He said this was why in his opinion the test case, if it did go ahead would be a good thing as it would end the uncertainty.

 

I went on to mention the fact that Abbey had just cancelled my overdraft facility and that there was a sum owing to them. They recently wrote to me asking me to pay this off to prevent further charges and interest being added to the account. I asked the judge, if he could not lift the stay, whether he would be willing to impose conditions which would prevent the Bank from applying these charges and interest as I felt it was not fair that they could continue applying them if they had requested and been granted a stay. Here, there was some good news! He said that a precedent had been set in the high court that Judges did not have the power to prevent banks from applying charges or interest but he went on to say that if the OFT win the test case, these charges would not apply anyway. I commented that as the test case was likely to drag on for a couple of years, this could amount to a great deal of charges and interest and that I expected the Bank would at some point start demanding repayment and threatening defaults and reporting me to cra's. He said that if this was the case, he would not be impressed as the account is in dispute until the test case is settled and if I did receive such letters, I could use them to apply to get the stay lifted and he would not stand in my way in those circumstances as he believes the stay should apply to both sides. He said "do I make myself clear?" to the Barrister and asked the Barrister to pass that information onto Abbey when submitting his case notes.

 

So on the whole I think this was a fairly good result, the abbey can add charges and interest if they wish but they cannot try to force me to repay the overdraft or I can have the stay lifted. Glad it is over now for a while, I'm going to crack open a nice bottle of wine when the kids are in bed!! Thanks so much for all the support and help I couldn't have done it without you

[TUTTSI]

James what a bummer! this is the 2nd case I have heard of today. The DJ's really do not want to try these cases and will look for any loophole so as not to listen. So what has happened to our Legal System!

 

All you can do is wait and wait and wait....

 

All the best

Ds

[ohoh4312]

Hi

 

Sorry you didn't get a total result today, but at least your Judge treated you like a human being with a brain - unlike mine!

 

I found this bit most intriguing; in fact it made my blood boil (again!):

 

In my case he could not see any benefit in just carrying on with the breach of contract part and the barrister commented that if the judge did do this, Abbey would most likely apply to amend their defence and remove any reference to a breach of contract anyway.

Are they completely off their rockers, or do they just assume we are all totally thick??!! So they would change their defence to represent the new T & C's??? Well, HELLO, but the whole of our claims are covered by the old ones, and having looked into contractual law, T & C's cannot be retrospectively applied. What a bunch of wotsits.

 

Ooops sorry, rant over.:o

 

Enjoy your vino tonight - you deserve it, and lets hope sometime in the not too distant future we will all be popping corks on champers!

 

Best regards

 

Jo xx

[JAMES33]

Thanks for that Jo! Yes I know what you mean, the Barrister mentioned that to me before we went in and I just said it would be for the judge to decide whether to actually allow them to amend their defence and that I considered that to be very underhand and typical of abbey's tactics. He even mentioned it again in front of the Judge when he was giving his reasons why the stay should remain in place, I felt like asking whether I would be able to change my claim whenever I liked too but didn't have the nerve. It just seems as though the Judicial system will let the banks do whatever they like whereas we are made to toe the line at all times.

[charleyfarley]

J,

 

Jell done, you seem to have given a really good account of yourself in very difficult circumstances. As you say, typical of the judge to hide behind the Test case, but at least he listened to your side of the argument, which is a damn sight more than he did for ohoh.

 

and Abbey can stick their overdraft charges while the ccount is in dispute.

 

Have you done a proper registering of the account as in dispute letter?

 

Well Done again hun:) :)

[JAMES33]

Hi CF! Yes I have already sent two letters to Abbey registering the account as being in dispute each time they sent me a letter regarding my overdraft. It was rather funny when the Judge was telling the Barrister to make it perfectly clear to Abbey that he would not be best pleased if they tried to enforce payment of the overdraft he then went on to say that even if the Barrister did pass the message on, the left hand didn't seem to know what the right hand was doing at Abbey and that it was fairly likely they would still send an enforcement letter to me but that at least I would know what to do with it when it arrived:shock: - he is obviously getting to know Abbey almost as well as we do!!