elisedriver vs Abbey

[elisedriver]

25 March 2007 : Initial Letter sent requesting £ sum

30 March 2007 : Bog standard photocopied acknowledgement letter sent from Abbey

17 April 2007 : LBA Sent

27 April 2007 : N1 filed at County Court

28 April 2007 : Bog standard photocopied letter dated 25/4/07 received from Abbey stating sorry it's take four weeks - but it could take another 4 weeks for them to look at my 'compliant'.

[elisedriver]

11th May - Received an intention to defend letter

[rory32]

Wouldn't worry about the intention to defend - they may enter a defence but won't actually defend in court.

[Guest louis wu]

Don't tell me, they deny all of your claims....and no amissions have been made.

 

They are nothing but consistant.......predictable, but consistant;)

 

 

I guess it wont be long before you get the predictably consistant refund:D

 

Good luck

 

Louis

[elisedriver]

Just a further update (27/5/2007):

 

The deadline for 28 days after the service date for them to file a defence passed yesterday. Now unfortunately with the bank holiday, the courts office is now shut until Wednesday morning.

 

Following the advice of the clerk of court on Friday evening (When they were finishing and hadn't received any defence and were up to date with all their post ), I have completed the N205A and returned it to the court stating the defendant has not filed a defence. This was hand delivered and put in the courts postbox on the day.

 

Hopefully now the defence has missed their deadline and I can proceed to reclaim my cash by them defaulting

[elisedriver]

DESPITE The deadline for the defence passing, this was received today by first class post. It conveniently has a date on it the day before....

 

IN THE xxxxxxxxxxxxxx COUNTY COURT

BETWEEN:

 

XXXXXXXXX XXXXXXXXX

 

Claimant

 

-and-

 

ABBEY NATIONAL PLC

 

Defendant

 

DEFENCE

 

 

1. Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

 

2. It is admitted that the Claimant has a current bank account with the Defendant, account number xxxxxxxx (the"Account").

 

3. At all times the Account has been subject to the applicable terms and conditions ("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when the Claimant opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts:

(1) "You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable."

(2) "An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed."

(3) "If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account."

4.Throughout the period that s/he has had the Account, the Claimant received a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated (though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

 

5. Any overdraft facility on the Account was (and is) subject to the Conditions.

 

6. The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of separate occasions, full details of which will be provided on disclosure. Therefore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. In accordance with the Conditions, such fees were debited to the Account.

 

7. In view of the facts and matters referred to in paragraphs 3, 4, 5 and 6 above, the Defendant denies that the amount of £x,xxx.xx or any other, amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied. The Defendant denies that the Claimant is entitled to claim interest in the sum of £xxx.xx or at all.

 

8. The Claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant.

 

9. Further or in the alternative, even if the said fees are not proportionate to the Defendant's administrative expenses incurred (which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charge made to the Account.

 

10. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

 

The Defendant believes that the facts stated in this defence are true.

 

I am duly authorised by the Defendant to sign this statement.

Full name: Willem Basson of Abbey National pIc

position or office held: Paralegal

 

Date: 25 May 2007

[Leecabs]

Hello Elisedriver,

 

it seems they are doing the same to everyone waiting till the last minute and putting in a defence.

 

Hold tight and submit your bundle once you get your date, as im sure they well settle soon after!

 

Good Luck

 

Leecabs:)

[elisedriver]

Just received in the post :

 

Judgment for the Claimant

 

To the defendant

You have not replied to the claim form

 

It is therefore ordered that you must pay the claimant £2141.90 for debt (and interest to the date of judgment) and £120.00 for costs

 

You must pay the claimant a total of £2261.90 forthwith

 

 

Now I'm not going to get too excited about this - because I'm sure it was just an admin error them not filing with the court : and they as for it to be set aside, or stay etc etc

 

But is this a good thing or not ??

[Lula]

LOL its great, they may apply for a set aside and generally they will get it, but you never know, the court system is so hacked off with these vexaxious defenders, that they may even deny the set aside Let us know how you get on.

[KnellyK]

 

Now I'm not going to get too excited about this - because I'm sure it was just an admin error them not filing with the court : and they as for it to be set aside, or stay etc etc

 

But is this a good thing or not ??

 

I'd say it's a good thing!

http://www.consumeractiongroup.co.uk/forum/abbey-cahoot-successes/64730-knellyk-abbey.html

I had exactly the same thing, no acknowledgement so I filed for judgement, then I had a copy of the defence from Abbey so I thought they'd apply for a stay, then I had the notice of judgement, then nothing until I had the cheque a couple of days before the date I'd stipulated!

 

So they could just pay up!

[elisedriver]

Well I just tried to apply for a warrant of execution, as nothing has been received from Abbey - and I've heard that they've filed a request for a stay.

 

The hearing is on the 11th July : so I'm hoping to get some paper work drawn up and attend the stay hearing. Hopefully, if I can word it sufficiently, then i can proove that they have no intention of actually defending and the whole stay is about an abuse of process.

[Leecabs]

Thats not to far away have they made any offers or tried to negotiate with you yet?

[elisedriver]

No negotiation what so ever.

 

Since we're now effectively in a Stay situation before the decision about AQ's being allocated, then it's hard to chose the next route.

 

If they get awarded a Stay, then it'll be the delay for the AQ.. then the delay for the court date....

 

 

I think the timely resolve would be for me to prevent the stay and get the judgement to stand.

[Leecabs]

Same here no offers just waiting to see if they bother to Acknowledge on Monday, will probably end up in the same boat as you!

 

Best wishes

 

Leecabs:)

[elisedriver]

Well after the hearing, it did get set aside

 

However, the Judge did make them specify and prove that they were going to actually defend the case - and on behalf of the Abbey, the solicitor swore in court that they would be defending the case in the court.

 

The court date was set for the 21st September 2007 - with all papers to be filed to the court and both parties by the 13th August 2007.

 

Well guess what - they've failed to submit any court bundles ( I did ) and now.... they've written to me with that photocopied Abbey letter stating they are using the OFT hearing to apply for a stay.....

 

..only, they've already missed all the court deadlines....

...and have lied in court about their intention to defend - as by the date they would have already signed up to the OFT agreement.

 

Just waiting now for them to write and actually apply for a stay.

 

Although I may write to them to point out that they have missed their paper filing dates again ( it was a very sore point in the Set Aside hearing which the judge was very upset with the Abbey solicitor - so much so, he awarded me costs instead of them, because it was their fault for not filing paperwork correctly )

[Lula]

oooooooooo Elsie, thats fantastic, they are going to get their bottoms well and truely spanked, Send the letter to Abbey and the judge stating that they have failed to file. this is going to be a goodie - saying that they are going to apply for a stay just doesnt cut it, if they are told specifically to do something by the judge then whatever else they want to do, THEY MUST COMPLY LOL

 

p.s. yes I know I called you Elsie, I see Elise it comes back Elsie lol

 

Dear Sir/Madam,

 

[You] –v- Abbey Plc

Claim No: ********

 

I write in relation to the claim as detailed above, and specifically the order made by District Judge ******* dated [date].

 

You were ordered by the court to by [date] file and serve the documents upon which your client intends to rely at the forthcoming hearing. For your reference, a copy of the order to which I refer is enclosed with this letter.

 

To date I have received no such documents and accordingly you are now in breach of the aforementioned court order.

 

Please note that the evidence upon which I intend to rely was both filed and served pursuant to the order of the court on [date].

 

Your non-compliance creates a significant imbalance between the parties in light of the forthcoming hearing, which is contrary to the overriding objective. This imbalance is particularly exacerbated by the fact that you are specialist solicitors representing a powerful financial institution, whereas I am a litigant in person. I feel that your litigation should be conducted in a professional manner befitting of such a prestigious organisation.

 

In view of the above, I will request at the hearing that the District Judge gives consideration to whether your client's defence should be struck out pursuant to CPR 3.4(2)© and/or (b).

 

Please reply at your earliest conveniance explaining why you have not served the documents as ordered and stating by when I can expect to receive them, or alternatively, indicating that you wish to settle these matters without the need for a hearing.

 

I look forward to your prompt response.

 

Yours faithfully

[Leecabs]

Best of luck Elise driver!

 

Would be good for moral if you win!

[elisedriver]

Well on the moral front, I'm actually in court on Monday with Barclaycard.

 

They failed to submit any documents, and then started to negotiate this last week offering full payment - only I rejected it with the confidentiality clause attached. The only problem with there plan : the person dealing with the claim is now on holiday until AFTER the court date and no one else apparently can deal with it....

 

... so to walk into court on Monday and hopefully have another win.

[Lula]

should be a no brainer, they are not allowed to impose a CC and a judge with think it is unreasonable.

[elisedriver]

On the 18th of August 2007, I wrote to the court with this :

 

S****horpe County Court Claim : 7SC00350 , served 29 April 2007

 

I, the Claimant, refer to the claim as detailed above and specifically the order made by District Judge Chesterfield dated 27th July 2007

 

 

I wish to inform the court that the defendant has not complied with the order in that it has not served upon me the evidence, or any such documents, upon which it intends to rely at the forthcoming hearing.

 

 

Despite my letter on the 29th July 2007, I also reminded the defendant's solicitor on 6th August 2007 to it serve the Defendent's documents before the deadline. I have received no response to any of these items of correspondence.

 

 

I can confirm that my documents were filed on 8th August and delivered to the Defendant by first class registered post on the 9th August 2007.

 

 

It is submitted that the Defendants non-compliance creates a significant imbalance between the parties in light of the forthcoming hearing, which I believe to be contrary to the overriding objective. This imbalance is particularly exacerbated by the fact that the Defendant is represented by specialist solicitors / a specialist legal department and dedicated team, whereas I am a litigant in person.

 

 

Accordingly, it is respectfully suggested that the court may be minded to make an order pursuant to Rule 3.4(2)© of the Civil Procedure Rules, or other such order as the court deems just.

 

 

May I also take this opportunity to highlight the previous hearing in this case where Abbey successfully applied to have a previous Judgement set Aside - as the attending solicitor was adamant that Abbey would attend a hearing, would file their paperwork on time upon allocation to a track and that their application for the Judgement to be set Aside was not a delaying exercise. At the time of the hearing, they would have been privy to the OFT’s test case and therefore any application of their behalf to apply for a further stay would be against the evidence they presented in court on the 10th July 2007.

However, This is what I've just received from the court today ( 12 September 2007 )..... dated at the top as being 7th September...... but the order being dated 22nd August.......

 

Belore DEPUTY DISTRICT JUDGE SMYTHE sitting at S****horpe County Court, Corporation Road, S****horpe, North Lincolnshire

 

Upon reading the letter on behalf of the Claimant

 

IT IS ORDERED THAT

 

The proceedings be stayed pending the outcome of the test case issued before the Office of Fair Trading in the High Court under claim nmber 2007 Folio 1186

 

The small claims hearing listed for 21 September 2007 at 10:00 shall be vacated

 

Dated 22 August 2007

 

I am far from happy !!

Basically, they've ignored my letter completely, not looked at the ruling and order of the previous application to set aside and just seen a letter and applied a stay to it

[jansus]

Dont know whether the last pages on this thread help?

 

hadyanth vs Lloyds TSB - Goodbye fingernails...

 

Does the order not allow you an official right of appeal?

 

Jan

[elisedriver]

Unfortunately my order is worded

Failure to comply with the directions may result in the case being adjourned and in the party at fault having to pay costs.

 

 

No mention of strike out or judgement - just "may" and "adjourned"

[elisedriver]

Long time no update -

 

But just received this letter

 

Dear Sir

Re: ABBEY NATIONAL PLC -ATS- YOURSELF

 

We previously wrote to you about your claim regarding unarranged overdraft charges on or around 7 August 2007 and advised that, we, along with a number of other banks, ("the Banks") and the Office of Fair Trading ("OFT") were involved in legal proceedings in the High Court to decide the legality of charges in this type of circumstance ("the Test Case").

 

We write to update you following the judgment in the High Court in the Test Case given on 24 April 2008. As explained below," this judgment deals with some preliminary issues relating to unauthorised overdraft charges and was given after the first trial in the Test Case process. That trial was not the final hearing in the Test Case process.

 

A Case Management Conference ("CMC") also took place on 22 and 23 May 2008. This was a procedural hearing to decide the next steps in the Test Case process.

 

What was the first trial about?

At the hearing that ended in February this year, the Judge was asked to decide whether the Banks' terms and conditions relating to unarranged overdraft charges are capable of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCRs") and capable of amounting to penalties at common law.

 

What does the judgment say?

This judgment - which contains important points for both the Banks and the OFT to consider - marks the first stage in the Test Case process. The Banks remain committed to resolving, through the court, the legal issues concerning unarranged overdraft charges. The judgment illustrates how complex those issues are.

 

The court has decided (subject to appeals) that the banks' current terms and conditions relating to unarranged overdraft charges:

 

• Are not unenforceable penalties; but

• Are assessable for fairness under the UTCCRs.

 

The banks are pleased that the court has agreed that their current charges are not unenforceable penalties.

 

What happens next?

At the CMC on 23 May 2008, the Judge made the following decisions in relation to the next steps:

• The Banks are allowed to appeal the Judge's decision in relation to the UTCCRs. It is expected that this appeal will be heard in the Autumn.

• In the meantime, the Court will be asked to consider whether terms and conditions previously used by the Banks are capable of being penalties. A short hearing to decide this is scheduled to take place on 7, 8 and 9 July 2008.

 

The Banks and the OFT agreed that the case should move forward as quickly as possible. With assistance from the Court, this has been achieved to date and the Banks are committed to ensuring that this remains the case going forward. At this stage it is not possible to predict when the Test Case will be finally concluded.

 

What this means for your claim?

Following the commencement of the Test Case your claim has been on hold. We have asked, and will continue to ask the County Court to keep your claim on hold pending the final resolution of the Test Case. This approach has been endorsed by Mr Justice Andrew Smith (the Judge in the Test Case) who said on 22 May 2008:

"I think what I said ip February and again in April is that, as we are all conscious, the proceedings in the county courts have been on hold, if not formally stayed, pending guidance, we hope, from this litigation, and at each stage I had been considering whether there is any reason that that position should change. I hardly need to acknowledge again that the management of the county court proceedings is not for me or the High Court, but for the county courts. But the reasons that those actions should not proceed seem to me as strong as they were and will remain so until any appeal by the banks on whether regulation 6.2(b) applies is resolved."

As previously agreed with the Financial Ombudsman Service and FSA, customer complaints relating to unarranged overdraft charges will continue to remain on hold. The FSA agreed to this subject to conditions that protect your rights. In addition, the FOS has agreed not to act on any complaints until the legal proceedings between the Banks and the OFT have been concluded.

 

Further information

We will write to you again in due course to update you on the Test Case. In the meantime, a copy of the text of the full judgment can be found at Judiciary of England and Wales website and further information is available on our website at Abbey : Online banking, Mortgages, Savings, Current Accounts, Credit Cards, Personal Loans, Insurance & Inves

 

Thank you once again for your patience.

 

Yours faithfully

 

>

For and on behalf of Abbey National pic

 

PDF Rendition of this letter can be found here