Help with N9B Defence

[Pompeyade]

I have received a counter claim from Lloyds, claiming a quarter of what they owe me, in my defence i have considered putting that the monies they are claiming are because of there charges, is this right, or is there a template on what to write.

[hagenuk]

Detail their claim against you here please, removing any personal identifying details of course.

 

Is it a loan or an overdraft that they are claiming that you owe them?

[Pompeyade]

I am claiming £1580 plus interest at 8% and costs, they are counter claiming, £317.80, in an attempt to "alternately diminish the claimants claim" .

[hagenuk]

You are going to have to give us more to work on than that - unless that is all you have, in which case I really don't think you will have a problem...

 

Type their entire defence and counterclaim here, then you will get help.

 

For example, why are they claiming £317.80, what is it made up of and why do they think you owe them it?

[Pompeyade]

1. The defendant Lloyds TSB Bank PLc("the Bank") is a bank whose registered office is 25 Gresham Street, London EC2V 7HN. It is admitted that the Claamant has been a customer of the Bank at all material times until (date) and held a joint select account with*** numbered *** which appears to form the subject of these proceedings.

 

2. By opening an account with the Bank, the customer enters into a commercial arrangement with the bank for the provision of banking services. The bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with details of the banks charges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorproated into the contract. For personal cusatoemrs a number of services are provided for free, not withstanding that they ar an expense to the bank. Such services presently include, but ar not limited to, providing;

cheques

bank statements

the facility to make payments by direct debit and standing order

debit cards

ATMs(cash machines)

 

3. By maintaining the account in credit, or within any time limit agreed with the bank, the customer may avoid most if not all charges. If the customer fails to ensure that there are suffiecient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the banks own funds. If the bank makes a payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract.

On page 1 of the leaflet, the bank explains "there are normally no charges for everyday banking at Lloyds TSB when your account is in credit.

 

When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement or where you use special services, such as copystatements, we will make a charge. This guide explains how these charges work, and when they will apply.

 

If you want ti use a service that we havent listed, we'll tell you the cost of that service before you give us the go ahead.

 

4. There is no breach of contract; the charge cannot therefore be a penalty, consequently there is no requirement that the charge be a pre estimate of the banks loss.

 

5. The customer is given advance warning of charges being imposed; statements show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following months statement. Cusotmers are warned by letter when they go overdrawn or over thei agreed limit without arrangemnts with the bank. If the customer fails to remedy the position, and payments such as standing orders and direct debits are refused then again the customer is warned by letter.

 

6.The charges are fair and reasonable, and it is denied they are unlawful.

 

7. The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charges terms which relate to the price payable by the customer for a service provided by the bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999. are not subject to the assessment of fairness.

 

8. In the premises:

 

8.1 the charges are for banking services, and are not damages nor a penalty.

 

8.2 the bank is entitled by contract to impose the charges, which are fair and reasonable.

 

8.3 it si denied that the charges are unlawful or contraven any statute or regulation.

 

9. The claimants claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum form the bank.

 

10. Further or alternatively, the bank is entitled to set off such sums as are found to be due to it pursuant to its Counterclaim below in order to extinguish, alternatively diminish, the claimants ckaim.

 

Part 20 Claim

11. Paragraphs 1 to 10 above are repeated.

 

12. On or about the 21st May 1990, the claimant and **** applied to the Defendantat its Palmerston Road, Southsea, branch to operate a Bank account, namely a select account.

 

12. On or about the 21st May 1900, the Defendant agreed to open a select account in the name of Mr*** and Mrs ***. This agreement number *********** was made in writing.

 

13. As the claimant failed to conduct their account in accordance with the terms and conditions that govern the Select Account, the Defendant sent a formal demand in the 17th May 2006 demanding the repayment of the total amount outstanding.

 

14. In breach of the term pleaded in paragraph 13 above the claimant has failed to repay the outstanding sum of £317.80 to the defendant and such the sum of £317.80 plus interest is now claimed by the defendant.

 

15. As the claimant failed to make payment in accordance with the Defendants Demands, the select account wa closed on the 20th September 2006 and the outstanding balance of £317.80 was transferred to the banks consumer debt recovery dpeartment on the 26th September 2006.

 

16. The defendant claims interest on:

(i) the sum of £317.80 for the period 26th September 2006 to 12th April 2007 inclusive at a rate of 8% per annum pursuant to section 69 of the County Courts act 1984 as amended,(198 days at a daily rate of £0.07p=£13.86)

(ii) continuing at £0.07 pence per day until payment or sooner judgement.

 

And the defedant counterclaims:

 

(1) The balance due on the select account, currently £331.66

(2) Interest pursuant to section 69 of the county court act 1984 as amended at the rate of £0.07 pence per day until judgement or sooner payment.

 

My parents in law live on disabilty allowance and income support, they have tried on numerous occasions by letter to agree a payment level, to pay this debt off. They have many other debts, which came from having to sell a pub business they had due to ill health.

 

They have written repeated letters, all of which were ignored, apart form letters relating to bank charges and court action.

[Sparkie1723]

At first glance I think that if they are saying that your claim of £1580:00 are "normal standard" charges for just running your account are a bit steep to say the least, was your initial claim for penalty charges only...what did it consist of,

 

Further more I do not seem to able to understand where these two sums

 

1...of £317.80 and

2...of £331.66

Why are they trying to counter claim these two.

Also they are trying to use a double edged axe here they say they deny the claim entirey then say if they are found liable they will attempt to claim back one ...or both of the two sums they state

 

Haven't quite got that .....anyone else read it different???

 

sparkie1723

[Guest ChloeJane]

Hi there,

 

Ok - the counter claim is merely to cover a debt that is owed to them that has not yet been cleared. This would make sense as it is with the debt collectors.

 

As this is a counter claim, you do need to defend the counterclaim. What this means is to defend the points that are raised and accept or deny what they have stated.

 

This is then a defence to a counterclaim.

 

Looking at it, you can clearly argue several points and while not a moderator, would be happy to help and give re assurance and help with the defence itself or am sure one of the Mods will be along surely to point out the format.

 

It would be good to have a template of a defence to a counterclaim, as it is becoming more of a pattern for the banks for outstanding doubts.

 

Don't worry though! All they are doing is claiming back what is outstanding from the total sum you are arguing for back, so they are not arguing your amount claimed, just wanting a little back and this is a gauranteed way, in which to get what is left owing to them.

 

Lastly, be confident you will have the last word, as if I know the team of Mods and site helpers, that defence of yours will be great and will have you holding the upper hand.

 

This may be a bit too much for you, but will explain a little more in technical terms. Part 20.4 is worth reading.

 

PART 20 - COUNTERCLAIMS AND OTHER ADDITIONAL CLAIMS

 

CJ

[Pompeyade]

I would be very grateful for any help recieved, i feel i have taken on a bit too much here for someone else, that i dont fully understand, but it will be worth it!

[Guest ChloeJane]

Working on it now - will post the defence to counterclaim later this evening, though would like a Moderators thoughts and approval before you print and use.

 

Hope this is ok,

 

CJ

[Guest ChloeJane]

Reply and Defence to Defendant’s Counterclaim

 

 

 

 

• In this Defence to the Counterclaim the Claimant uses the same terms as the Defendant and seeks to have on record that the Defendant has not made admissions or non admissions to the original particulars of claim.

• The Defence to the Counterclaim consists of admissions and non admissions of which support the Particulars of claim by the Claimant.

• Paragraph 1 Agreed.

• Paragraph 2 Denied.

As per particulars of claim against the Defendant 4 (a) in so far as by maintaining the account in credit heavy irreversible penalties are placed on the account.

 

• Paragraph 3 Denied.

The Defendant is put to strict proof of the banks loss in relation to charges incurred on the account. Actual costs versus costs charged as per particulars of claim in so far as the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant;

 

• Paragraph 4 Is Denied.

By virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law a penalty system is in breach of these.

 

• Paragraph 5 is Denied.

No advance warning of charges is given prior to the penalty being charged onto the account. Notification is only given after the charges appear and deemed a penalty and as is not removed or reversed if the account is rectified as per a written request.

 

• Paragraph 6 – Denied as above paragraph 4 repeated.

• Paragraph 7 – Denied.

The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

 

• Paragraph 8 – is not understood so not denied nor agreed.

• Paragraph 8.1 – Denied

If the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

 

• Paragraph 8.2 – Denied

In so far as the Defendant has contradicted themselves in Paragraph 7 stating they are not subject to the assessment of fairness, now claiming they are fair fees though has not provided evidence of this to back up such a statement.

 

 

• Paragraph 8.3 – Denied – Paragraph 7 is repeated in response.

• Paragraph 9 – Denied – As per full particulars of claim by the Claimant.

• Paragraph 10 – Not agreed nor denied in so far as it is admitted that money is owed to the Defendant however the claim is due to the Defendants penalty charges, by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law a penalty system is in breach of these

• Paragraph 11 – Paragraphs 1 – 10 as per above.

• Paragraph 12 – Agreed.

• Paragraph 13 – Denied

The Defendant had already taken money by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law a penalty system is in breach of these, hence causing the Claimant the debt owed.

 

• Paragraph 14 – Denied as above reply to Paragraph 13.

• Paragraph 15 – Denied.

Defendants Demands unreasonable. The Claimant lives on disability allowance and income support, and tried on numerous occasions by letter to agree a payment level, to pay this debt off of which proof is will be submitted in evidence.

 

• Paragraph 16 – Part admission in that the sum of £331.66 is owed however no interest should be awarded to the Defendant in this matter, as clearly the claim would not be brought before the courts if the Defendant had not placed *** AMOUNT*** penalty charges on the account which forms the Claimants case.

• The Claimant is willing to accept that the sum of £331.66 be minus from the original claim amount – to reflect £1248.34 plus 8% plus daily rate to settle the matter in full of the counterclaim by the Defendant as full and final settlement or that the matter proceed to be heard.

[Guest ChloeJane]

I was just having a play and any suggestions greatly listened to and learnt from with a reply.

 

As a law student, I like to have a go and do learn as I go with setting out things and how to reply, so if Bankfodder of anyone legal can look at it and share thoughts, I am watching!

 

Its better than nothing though?I never claim to have all the answers.....long way from that....

 

CJ

[Pompeyade]

Thank you so very much for your help, i can not begin to tell you how grateful i am.

 

Thanks

 

Adrian

[hagenuk]

An excellent and very detailed reply by Chloejane there, print and send that off and look forward to getting paid!