My Case against Natwest

[Seminole]

Just to be clear, have you actually applied for judgement or has the clock just run out on their time to file a defence?

[cakey]

I filed for default judgement and was awarded it.

 

They had filed an acknowledgement of service but did not file a defense. They have now had a few days to re-issue the payment to the correct address which they have not done so some time this week will apply for the judgement to be enforced (It will be a couple of weeks since the default judgement)

[cakey]

Well still no sign of the money, so have filed to have the warrent enforced by the bailiffs, will see what happens now!

[Spiceskull]

Cor blimey - I think this is the stage that whizzkid100 is at...check out his thread for some tips. Hope they cave in though, because I'm sure that this is a very stressful position to be in - so near and yet so far.

 

Best of luck matey

[dave]

It seems as if everyone else is having all the fun.

 

I've never had a default judgment obtained and therefore not had the chance to send in the bailifs either.

 

The buggers just pay up once legal proceedings have been started.

 

[stamps feet] I wanna have a go!!!

[whizzkid001]

Though I'd rather have the money than this long wait Dave! Still, gonna drag them down as much as I can!

[cakey]

Likewise, but a lot of my situation is down to their complete and utter incompetence and thinking they are the ones "in control" of the situation. For a change the balance of power has shifted with the banks back to the consumer!

[cakey]

These guys are shocking, they have now sent a bankers draft for the sum with a statement saying its a goodwill gesture and on the basis I keep my gob shut and withdraw my case..... hmmm yeah right they lost the case as they did not file their defense in time (e.g default judgement) so surely they cannot impose terms on me....

 

Also I paid an extra £55 quid yesterday to have the judgement enforced... so how do I get that from them or should I ask the court to refund it???

[Movingon]

I don't know about the court bit, but one thing I DO know. Write to the bank quickly accepting their draft in full and final settlement, however confidentiality is a separate commercial issue between you which you will entertain in consideration of the sum of £5000

[thecornflake]

Personally I would refuse the refund on the basis of the conditions attached and the fact that they are sending it as a goodwilll gesture.

They're obviously wanting to keep you quiet on this because they messed up in the first place. You already have a default judgement. Accepting this would mean dropping your case. I can't believe they sent it to you after the judgement was awarded!

 

You should go all the way until they either pay up unconditionally or you have to send the baliffs in, although I'm sure you know this anyway.

 

I assume you can claim the enforcement fee back but I'm not sure how it works. Maybe the money is added on to the bill when the judgement is enforced and you get your money.

[cakey]

Now I think Natwest are either just being intentionally difficult or just plain dull....

 

After yesterdays saga, the courts have agreed to cancel having the warrent enforced and return my £55 spoke to natwest on the phone told them I will tell the court the judgement is satisifed once their bankers draft clears but unless they want to pay me £5000 I will not sign confidentialilty...all seemed fine and I said I would confirm in writing.... today I get a letter dated 8th May starting with "I refer to our telephone conversation this morning" so assume it has the wrong date... the key points to the letter are these sentences:

 

"I am wriring in relation to the default judgement you obtained against the Bank.... It is the Bank's policy to apply to set aside any such default judgements." "Accordingly, and in an attempt to save both parties further time and costs in dealing with this matter, please accept the Bankers draft.... as a goodwill payment equivalent to the value of your judgement. ..... blah blah on the basis that you agree to consent to our application to set aside the default judgement..." "Please sing and retunr the copy of this letter confriming your acceptance as a matter of urgency"

 

If it hadnt been for our phone call and putting the draft in the bank yesterday I would have sent the bloody thing back to them... I am not willing to sign these terms is it really going to "cost me" if they try to get the judgement set aside?

 

If any one can give me some advice on this I would be grateful.

[thecornflake]

I'm not sure if they could have the judgement set aside. You could risk it all if you let them do this but it depends on hw final the judgement is. Might be worth asking the court - they are usually pretty helpful. Natwest are clearly worried about the judgement - they must just be trying scare tactics when really they can't get it set aside at all. They know if the judgement is enforced and ends up in the press they're in trouble.

 

You've got a full settlement, it would be nice to get the money via the judgement but if there's a chance they could have it set aside and defend their case it may be worth just taking the offer...

[cakey]

I am thinking of making a complaint to the courts about Natwest having a "policy to set aside judgements", from my understanding the only way a judgement can be set aside is if:

 

1. The documents were not served correctly. The Defendant has to show that the documents were not served, which obviously would explain why the Claimant had ability to enter judgment. This has to be done by way of an 'Application on Notice' (motion).

2. There is some good reason why judgment in default should be set aside. Any situation but is commonly used when service was effected properly, but still did not come to the attention of the Defendant (perhaps they were on a long vacation, or in hospital).

3. The Claimant entered judgment when they were not entitled so to do. For example, perhaps a Defence was filed in time, but the Claimant still attempts to enter judgment.

 

If I am correct simply having a "policy" to set aside judgements is verging on contempt of court? Any reasons why I should not write and complain to the court???

[fallen404]

I think we've established that the banks have some sort of difficulty understanding the law. Perhaps they think that actually having a judgement satisfied will set a precedent, allowing other people to claim more easily?

 

I'd say you've got every right just to tell them that the banker's draft was in satisfaction of the judgement, not in lieu of it, so as far as you're concerned the judgement stands.

[cakey]

Third time lucky.... they have now decided to default one of my acounts and close the account (without warning) so am about to sue Natwest for the 3rd time.... will keep you informed.

[cakey]

Have just got back from being away for a month getting married abroad to find that Natwest have filed a defence to my claim for £1200 using Cobbetts solicitors.

 

I filed it online using Moneyclaim so had to be concise with info, they are stating in their defence:

 

The cl;aimants claim is based in contract. Despite this and contrary to CPR Part 16 PD paragraphs 7.3-7.5 the particulars of Claim do not plead full and neccesary particulars concerning the contract....

 

Also they have asked for further information and clarification served pursuant to CPR Part 18. amongst other things (this documents is over 20 pages of theirs...) clairifaction of every charge,explanation why I feel they should not have charged me, whether I think the charges were applied due to breach of contract.

 

Do I need to reply to the solicitors or should I just send the allocation questionnaire to the court with a break down of each charge?

 

Thanks for any help

[alanfromderby]

I would send a copy of your spreadsheet with your AQ, I would also send a copy of both to Cobbetts. They are trying to frighten you with this, as under Small Claims CPR 18 does not apply.

[alanfromderby]

I would add that I do not fancy their chances in court, if they are going to suggest that you should be explaining what part their client's terms and conditions are used by them to justify levying charges!

[cakey]

I would send a copy of your spreadsheet with your AQ, I would also send a copy of both to Cobbetts. They are trying to frighten you with this, as under Small Claims CPR 18 does not apply.

 

Ok I sent of the allocation questionnaire with my spreadsheet to botht the court and cobbets solicitors. As an aside in the bit in the quetionnaire where it aks what other info you require from the defendent I mentioned that I needed a breakdown of how the bank calculate the £38 charge.

 

Today I received a "General Form of Judgement or Order" from the court saying: "Upon the courts own motion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it."

 

It IS ORDERED THAT

The Claimant do within 14 days of the service of this order upon him reply to Part 18 Request for Further Information a copy of which pleadins is annexed with this order.

 

HELP!!!

 

I thought Part 18 did not apply?? What do I do? Also at the same time today Cobbets have sent me a letter offering to settle half as they think I will lose in court!!! It states "Whilst this letter is written without predujice save as to costs, in the event that you decline the offfer, we will draw this letter to the Court's attention on the basis that we hold firmt he view the offer is entireley reasonable in the circumstances."

 

If the District Judge has asked me to provide the reams of info that Cobbets have asked for is he likely to look unfavouably at me for refusing their offer?

[cakey]

This is what I am thinking of replying with. If someone could let me know if they think this is ok before sending it - its in reposne to the judges request under cpr part 18 for more info: (I have stated their questions then my responses)

 

 

 

REQUEST FOR INFORMATION AND CLARIFICATION

 

1. In your claim you state: “The claimant claims from the defendant a sum equivalent to the total amount unlawfully debited to the claimant’s account during the [above mentioned] period, being £1170.07”.

 

RESPONSE: These have been clearly put to the defendant with the allocation questionnaire. Furthermore the defendant already has specifics of all charges debited to the claimants account by way of “bank statements”.

 

2. Please provide the following particulars in support of your claim:

 

2.1 In relation to each charge please identify (a) the date when the charge was charged; (b) the amount of the same; and 9c) the reason(s) given for the charging of the same.

 

RESPONSE: In relation to each charge details of these were provided with the allocation questionnaire and again are provided attached.

 

Furthermore I would suggest that the defendant should have details of any charges they have applied to the account, also that the defendant has at no time written to the claimant with details of these charges. The Claimant is unable to supply the “reason” given for the charges as those details should be supplied by the defendant – currently they use very vague terms for these however the defendant has stated their charges are “fair, reasonable and transparent”- the claimant therefore will and does request a clarification of how a £38 charge is calculated and the actual breakdown of that amount.

 

2.2 In relation to each charge identified in response to 2.1 above, please clarify the following: (a) is it the case of the Claimant the same should not have been charged? (b) if yes; please explain why the Claimant contends that the same should not have been charged this amount.

 

REPONSE: The Claimant as clearly stated in the particulars of claim contests all of the charges applied as per the attached spreadsheet.

 

The Claimant feels the charges represent a penalty and are therefore irrecoverable at common law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

 

The defendants charges do not reflect any actual loss, instead they appear to represent a lucrative profit-making scheme. In particular, charges were applied after I entered into a transaction(s) without sufficient funds in my account. 0n 26 July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. Therefore what would the court award the defendant for my minor breach of contract?

 

It is the claimants understanding that the court will only award (in a non-negotiated consumer contract) a sum to reimburse actual loss. The defendants charges do not reflect actual loss The claimant believes that these charges require me to pay a disproportionately high sum in compensation for incurring a transaction(s) which was ultimately declined by an automated computer system.

 

2.2 © If no; is it the case of he claimant that the same should not have been charged in this amount?

 

REPONSE: Not applicable see 2.2b

 

2.2 (d) if yes; please explain why the Claimant contends that the same should not have been charged in this amount and identify the sum the Claimant contends should have been charged.

 

RESPONSE: Duplication of 2.2b Please see response to 2.2b

 

2.2 (e) If no; please state the Claimant’s case.

 

RESPONSE: Not applicable see 2.2b

 

3. In your claim you state that “the claimant will contend that [the charges} are unenforceable at common law, being penalty clauses”.

 

REPONSE See 2.2b for further clarification.

 

The Claimant feels the charges represent a penalty and are therefore irrecoverable at common law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

 

4. Please provide the following particulars in support of your claim:

 

Please specify the clause(s) pursuant to which the charges were applied;

Please specify whether the charges were applied due to breach of contract by the claimant;

Please identify in each case the particular breach of contract (by reference to appropriate term(s) of the contract) that the charge related to.

 

RESPONSE: If the Defendant does not believe that it was their contract with the defendant that allowed them to charge what basis do they have for applying the charges?

 

“Section 1b additional terms and conditions states that “you must always ensure that the cleared balance (plus, where applicable, any unused overdraft facility) on your account at 3:30pm on the working weekday before the day:

-Cheques you have issus are presented for payment

standing orders and direct debits ae due to be paid

- you withdraw money from a cash machine

any other transaction are due to take place, including the application of interest and charges

is sufficient to cover payment of all these transactions.”

 

 

In particular, charges were applied after the claimant entered into a transaction(s) without sufficient funds in the account.

 

If the defendant contests this does not amount to a breach of contract the claimant will contest that charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The claimants account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. These charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

 

‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

 

0n 26 July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. Because your charges include a large profit margin, in addition to actual loss, they are irrecoverable as an unfair term in contract. The Claimant believes that these charges require him to pay a disproportionately high sum in compensation for incurring a transaction(s) which was ultimately declined by an automated computer system. The claimant has been advised to remind that such penalty charges are legally unenforceable, even if a clause exists in the Terms and Conditions that authorises such a charge.

[alanfromderby]

Looks fine to me, just one error I noticed:

 

The Claimant has clearly

[danler]

Hi Cakey

 

I to have just recieved nearly exactly the same defence that you have recieved. The only difference is the amounts mine is just under 2000. The AQ arrived this morning and I am about to send it back along with the list of charges. Keep us informed of how you get on..

 

I like the replies that you have given

 

Danler

[cakey]

This topic was closed on 03/05/19.

If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support their.

If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

- Consumer Action Group