MissPhonic v Abbey

[deedee1310]

Good luck Welsh Nick.

 

Abbey have until this Friday to acknowledge my claim.

 

MissPhonic Lambeth CC have a backlog and are not being timely with paperwork. I wish I'd filed at Wandsworth CC which covers my postcode too and probably yours. They're a bit more on the ball. I say this with regards to my CapQuest CCJ thread.

 

Anyway I hope all is well with you all. I'm off to see if I can help Jo with her AQ question us v the Abbey for £7,500 .

 

I'm away for two weeks after next weekend and will try desperately to resist the urge to log in! I will of course check in before I go

 

deedee x

[MissPhonic]

Hi DeeDee!

 

Typical! Wandsworth doesn't cover my postcode.

 

I'm stuck with Lambeth...... Let's hope they get a move on!

 

Vicki

[MissPhonic]

Hi all again,

 

Right I need some help with my N1, i'm coming all unstuck and convinced i'll cock it up and loose it all!

 

1. In the new poc for N1, point 15 "The defendant has not repaid them or any of them." I got a GOGW, which, on my statement was broken down into refunded charges, so in effect, they have repaid some of them.

I'd hate for them to knit pick on this one:confused:

 

2. The POC is broken down into Particulars of Claim, Schedule 1 and schedule 2, Do I just copy POC into the form and paste schedule 1 onto another page and schedule 2 is my spreadsheet, or does it all go into the POC space?

 

3. How do I know the claim number? Do the court fill that in?

 

4. On my spreadsheet, do I just put the GOGW on as a minus amount?

 

Thank you if you read this far! I'm really am not completely stupid I just know nothing about law! :-/

 

Vicki

[ohoh4312]

Hi Vicki

 

No problem on above questions!

 

Re point 15, I would amend it to say:

 

The defendant has not repaid them, save for £xxx of miscellaneous fee refunds as a Gesture of Goodwill, indicated as a credit in Schedule 2.

 

Just my opinion - hopefully someone else will look in to say if thats okay.

 

The PoC is Schedule 1, and is probably too big to fit on the form, so just print it out on plain paper, and indicate "attached" on the PoC paragraph of the N1. Then Schedule 2 is your spreadie, which is an attachment to the PoC.

 

The Court will issue a Claim No. once the claim is processed.

 

And yes re the GoGW - I'll do that if you like when you send over the spreadie.

 

Hope that helps - don't panic, it will all be fine!

 

Lotsa luv

 

Jo xx

[MissPhonic]

Submitted N1 to Lambeth CC

[deedee1310]

Submitted N1 to Lambeth CC

 

Go girl. Expect to receive the Notice of Issue by next week Wednesday.

[MissPhonic]

I'll hold you to that!

[MissPhonic]

Notice of issue recieved:D

 

Do I just sit and wait now?

 

Vicki

[deedee1310]

Notice of issue recieved:D

 

Do I just sit and wait now?

 

Vicki

 

Wow it came a day early!. Woo hoo - they must be pulling their finger out (slowly). Yes you sit and wait for them to acknowledge your claim. If in the unlikely case that they didn't acknowledge within 14 days, then you can go for judgement.

 

However shAbbey acknowledge usually at the last possible time. You will receive a copy of their defence and then at some point receive the AQ.

 

This is where I am at. I submitted my AQ yesterday and now the wait begins. I will call the court to see if they have applied for a stay and whether or not it has been granted.

 

Hang in there lovely - we're all in the same boat

 

deedee xx

[MissPhonic]

Thanks for that DeeDee!

 

Vicki

[MissPhonic]

Acknowledgement of service filed on 18th September.

 

Will Abbey contact me next?

[MissPhonic]

Received Abbeys defence yesterday, do the court contact me next?

 

At what point have people heard about a stay?

 

I am totally confused by all the legal chit chat on the defence and am relying on you guys to keep me on the right path!

[MissPhonic]

Anyone? No? Dust?

[ohoh4312]

Hi Vicki

 

Sorry not replied sooner - both kids got colds, and kindly given me a double whammy!!

 

Anyway, after the expiry of the service period, yes, the Court will contact you and inform you of the next step, which could be an AQ, or the Court could order a stay.If they don't, most stays have then been granted at a Hearing.

 

I am assuming that shabbey have sent you their new defence, based on the revised T & C's, yes?

 

If so, have a look here for advice from GaryH:

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/111050-abbeys-new-no-breach.html

 

Sorry it's a bit short - rushing out in a minute, but I will catch up properly tomorrow.

 

Lotsa luv

 

Jo xx

[deedee1310]

Hey Vicki.

 

I'm in the middle of moving and everything that can go wrong is going wrong

 

Jo beat me to it You will hear from the Court with regards to the stay. Lambeth CC as we both know are quite slow. I sent my N244 Application Notice for removal of Stay last week for my shAbbey case. It cost me £65 The judge made the order to stay the case of his own accord and gave just 7 days from date of service (which is the day I received it), to appeal the decision. :o I will PM you the name of the judge who stayed my case, a later.

 

Still awaiting a reply I have just done another one for Capital One. I did not pay £65, I simply wrote a letter and faxed it to the court. You're a couple of weeks behind me. We just have to sit tight as the whole OFT case is NOT HELPING.

 

Have to dash, I'm incredibly stressed and having to use dialup at the moment which is a pain. I am currently between two homes, 30 miles apart and have had to leave my children with my sister. My poor OH is also stressed and has barely had any sleep.

 

Anyway lovely, I too will catch up with you later.

 

deedee x

[Lula]

Miss Phonic, what does the defence doc say?

[MissPhonic]

Hi all!

 

Thanks for your replies! Still not heard from the court but with the postal strikes I doubt I will for a while - I recieved a letter today postmarked 3/10/07 so so the backlog must be massive:(

 

How's the move going Dee? I presume you're out of London now - i'm lost out of London!

 

Hope your lot are all better now Jo!

 

I have no scanner so I've typed up the defence - took all day with a very active 5 month old bouncing all over me!

 

It's still all babble to me though:( Is it standard?

 

Defence.

 

Introduction.

 

• In this defence:

1.1 References to paragraph numbers are, save where otherwise indicated, references to paragraph numbers of the particulars of claim.

 

 

1.2 The defendant’s accounts Conditions will be referred to as “the Conditions”.

 

 

1.3 References to an “unauthorised” overdraft are to an overdraft permitted by the defendant without prior application and arrangement under clause 6.1 of the conditions.

 

2. It is admitted that the claimant held the following account with the defendant, account number to be particularised (“the Account”). It is admitted and averred that the contractual provisions between the Claimant and the Defendant in relation to the Account are set out in the Conditions.

 

3. It is denied that those charges payable and that the 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 put 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.

 

7. The Defendant understands the Claimant’s allegation to be that the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instruction are not binding on the Claimant by reason of regulation 8(1) of the Unfair Terms in Consumer Contract Regulations 1999 (“the 1999 Regulations”).

 

8. The Regulations, by regulation 1, came into force on 1 October 1999 and are of no application to any event occurring before that date.

 

9. Regulation 6(2) of the 1999 Regulations provides that:

 

“In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate –

 

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange,”

 

10. The fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are: (i) set out in plain intelligible language in the conditions, and (ii) amount to the “price or remuneration” in respect of that provision of such overdraft or such dishonouring.

 

 

11. Accordingly, by regulation 6(2) of the 1999 Regulations, the provisions of the Conditions as to the fees and interest delete as appropriate payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and in respect of the dishonouring of payment instructions are not liable to assessed for fairness under those regulations.

 

12. It is denied that paragraph 1(e) of schedule 2 to the 1999 Regulations is applicable. As pleaded above, the fees and interest payable in respect of an unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions are not payable on a breach of contract by the Claimant.

 

13. Alternatively, if (contrary to the Defendants primary case pleaded above), the provisions of the Conditions as to the fees and interest payable in respect of and unauthorised overdraft and an overdraft in excess of an authorised overdraft and fees in respect of the dishonouring of payment instructions fall to be assessed for fairness under the 1999 Regulations, the defendant’s case is as follows:

 

 

(a) Regulation 5(1) of the 1999 Regulations provides that:

 

 

“A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

 

(b) Regulation 6(1) of the 1999 Regulations provides (so far as presently relevant) that:

 

“…the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract….”

 

© It is denied that the conditions breach that provision of the 1999 Regulations. In particular, (i) the Defendants charges and interest rates are published and provided to its customers from time to time and are expressed in clear language; (ii) the incurring of charges and interest rates in respect of an unauthorised overdraft and an overdraft beyond that agreed and fees in respect of the dishonouring of payment instructions is a result of the Claimants actions; and (iii) the Defendant’s charges and interest rates are not, in the circumstances, excessive in relation to the value of the services provided in relation thereto.

(d) The Defendant reserves the right to plead further in this regard on the provision of gull and proper particulars of the basis on which the Claimant contends that the Conditions contravene regulation 5(1) of the 1999 Regulations.

 

14. Save as expressly pleaded to above, each and every allegation contained in the Particulars of Claim is denied as if the same were individually traversed.

[MissPhonic]

Received standard 'we will apply for a stay and OFT' jargon letter from Abbey yesterday dated 4th October 2007.

 

Received notice from Lambeth CC (dated 9th October) that defence filed, including AQ to be completed and returned by 26th October 2007.

 

Still no news from CC on a stay.

[MissPhonic]

Would someone please cast an eye over my defence and let me know if it's all standard stuff? I'm feeling very overwhelmed with all this and have to have my AQ in this week!

 

I did post in the GaryH thread but got no response there either!

[MissPhonic]

Right, Faxed over my AQ on 26th October, handed in hard copy and £35 fee in person on 29th October.

 

Phoned the court today for an update, the lady said it was with the judge and I will hear from him soon but it could be up to 2 weeks:rolleyes:

Still no word of a stay though!

 

In my AQ I have stated hardship, I am on maternity pay, we are in a heap of debt and just not making ends meet. I included an income and expediture breakdown.

 

Does anyone think it would be worthwhile emailing someone at Abbey, telling them the situation and seeing if they want to settle?

 

Also, with the AQ I copied the draft directions from the AQ help page, what happens with these? Does the judge decide whether he wants to use them or should I have done something with these?

 

Hope someone can help!

 

Vicki

[Lula]

Hi Miss Phonic., yes the judge will decide if he wants to use them, you could also fax over your objections to a stay on the grounds of hardship.

 

read up on it here

 

you can also try and appeal to Abbeys better nature, do you have email addresses for them?

[MissPhonic]

Lula I love you!:o

 

I wasn't expecting anyone to answer that fast, it's been dead around here for ages!

 

No I don't have any email addys.

 

Thanks for the link too, will have a look.

 

Vicki

[Lula]

ROFLMAO Just cos there isnt any activity, I am still around keeping an eye on stuff - just in case ok emails for Abbey

 

[email protected]

 

[email protected]

[srfrench]

I can personally testify that she is good!

[Lula]

Mr French!!!! I am shocked and embarrassed ROFLMAO rather like Abbey's defence really