abroadgirl v Abbey

[jailbird]

Good luck Abgs. I pm'd you my number but it looks like you got help. Will be thinking of you hun xx

[stonedecroze]

Hi all, this is the skeleton argument that we have come up with. Your comments advice and suggestions are more than welcome. both ABG and I are unsure whether to include a para refering to hardships caused by by said charges. As the Bank closed the account some time ago it is my feeling that they cannot be held legally for these although morally they most certainly can, but at the same time it may invoke some sympathy from a cold hearted DJ.

 

 

 

SKELETON ARGUMENT FOR THE CLAIMANT

(Litigant in person)

In the proceedings on XX/XX/XXXX at XX:XX relating to the Claimants application to lift a stay

The Claimant will rely on the following submissions :

 

 

 

 

 

 

 

 

 

1 Delaying tactics:

It is my strong belief that the Defendant has used unfair delaying tactics in an attempt to slow down the proceeding in this case all along the line from my first approach requesting copies of all my monthly statements, some of which I still have not recieved. When I submitted my N1 Claim form to the Court on 12 April 2007 the Defendant filed an Acknowledgment of Service on 18 April 2007 this gave them 28 days from date of service to file their defence, this expired on 30 April 2007. I requested a judgment by default in view of the Defendant's failure to file defence by the 30 April, this was returned on 22 May 2002 as the defence was filed on 10 May 2007 ten days late, and in my humble opinion showing a lack of respect to both the Court and the due process of law. The Defendant then served me with an Allocation Questionnaire which I returned within the alloted timescale. Then on 04 July 2007 District Judge Law ordered that the claim be stayed until 04 August 2007 to enable the parties to attempt settlement He also ordered that “on or before 17 August 2007 , one of the following steps must be take:” Then followed a list of three options. I have made many and numerous attempts via letter, Email , fax and telephone call to try to negotiate a settlement with the Defendants , All of these attempts have met either a total lack of any response, a “fob off” letter informing me that my complaint was being dealt with and finally a curt note informing me that the Defendants would take no action in my claim until the result of the “test case” was known. Defendants have also on 2 occasions referred my closed bank account to Debt Collection Agencies to recover alleged debt incurred by their, in my opinion , unlawful ongoing charges.

Furthermore, it is my belief that the defendant had considerable prior knowledge of the Test Case being brought by the FSA to the High Court regarding unauthorized overdraft charges, and the agreed waiver on future claims until this case has been resolved and has used this knowledge to an unfair advantage to me. In my opinion in this the defendant has played “fast and loose” with regulations governing their business practices and has used the legal system to its own ends i.e. profit

It is again further to my belief that this test case bears little relevance to my claim, which is for the return of all penalty charges unlawfully levied on my bank account and was commenced long before there was any “test case”.

Abbey National Plc.:

 

 

 

the Defendants,Abbey National Plc. have already settled 100 similar case to my knowledge prior to the announcement of the “test case”, in the attached list the Court will see that Abbey National Plc. were the defendants in all of these cases. These are figures gleened from on of several web based forums and there must be many more cases that I am not aware of. In some of these Abbey actually filed defences and returned their allocation questionnaires, obliging the claimants to do the same. However in every one of these cases, Abbey have either settled at the “11th hour” or even in the court , where they stubbornly refuse to prove the justification of their penalty charges. In some cases the court has even ordered standard disclosure against defendant bank but those bank have then gone on to settle rather than reveal the details of its contractual penalties.

It is further submitted that the defendant in the instant case has no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the bank is merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate right.

It is submitted that this is abusive of the justice system and of the public resource.

 

 

 

 

 

 

 

Human rights

 

It would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

 

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

 

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

 

The Overriding Objective

 

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

 

Balance of convenience

 

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them as has happened in my case. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship.

 

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

 

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

 

The Status Quo

 

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

 

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

 

In the alternative

 

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, I respectfully request that the court issues the following injunctions:

• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.
  
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
  
• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 )
  
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998.)
  
• That these injunctions remain in place until the settlement of my claim.
  
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent.
  
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.
  

I, the Claimant, believe all facts stated to be true.

[steven4064]

I don't have many comments - no important ones. You have numbered the first heading butno others - only relevant if this document is being passed on to the court.

 

Under 'human rights' you start with 'It ...' - it might be clearer to strart with 'the stay ...'

 

As discussed by PM, add a paragraph on the defendant's unfair and intimidating debt collection practices.

 

it may invoke some sympathy from a cold hearted DJ

it may antagonise a bloody-minded one so go carefully

[caro]

I've just started reading and the dates here jump out at me as not making sense.

 

When I submitted my N1 Claim form to the Court on 12 April 2007 the Defendant filed an Acknowledgment of Service on 18 April 2007 this gave them 28 days from date of service to file their defence, this expired on 30 April 2007. I requested a judgment by default in view of the Defendant's failure to file defence by the 30 April, this was returned on 22 May 2002 as the defence was filed on 10 May 2007 ten days late,

 

28 days from 12 April is 10 May 2007 so the defence would appear to have been filed on time. Also 22 May date should presumably read 2007.

[stonedecroze]

I've just started reading and the dates here jump out at me as not making sense.

 

 

28 days from 12 April is 10 May 2007 so the defence would appear to have been filed on time. Also 22 May date should presumably read 2007.

 

Well spotted Caro, we missed that were working on 14 if they had not acknowledged service. will leave that in as illustration of leaving things to the very last minute.

[steven4064]

Why don't you put in a complete new section, possibly after 'status quo' where you can talk about all the effects on abg - stress, etc and include Abbey's unfair and intimidatory debt collection activities (along with quotes from the OFT guidelines). You could call it 'other issues' or 'personal distress' or somoething like that.

[stonedecroze]

I don't have many comments - no important ones. You have numbered the first heading butno others - only relevant if this document is being passed on to the court.

 

Under 'human rights' you start with 'It ...' - it might be clearer to strart with 'the stay ...'

 

As discussed by PM, add a paragraph on the defendant's unfair and intimidating debt collection practices.

 

[/size][/font]it may antagonise a bloody-minded one so go carefully

 

 

Your comments are noted and step taken following your advice. We were thinking that it may help to explain how some situations arose, and adding even more to ABG s stresses

[stonedecroze]

Why don't you put in a complete new section, possibly after 'status quo' where you can talk about all the effects on abg - stress, etc and include Abbey's unfair and intimidatory debt collection activities (along with quotes from the OFT guidelines). You could call it 'other issues' or 'personal distress' or somoething like that.

 

 

 

again thanks Steven Would like to get this all done and dusted so that tommoz we are free to get court bundle sorted and orginised to look profesional, no better than profesional, we dont wish to turn up with a bunch of brown folders done up with a piece of sting.

 

I had better add copy of OFT guidelines to bundle also

[steven4064]

OFT Guidelines

 

I wouldn't spend too much time tinkering then. Make sure the facts are right and go to bed

[caro]

Good advice Steven. I think you've done a great job Stone, and I'm sure abg must be very grateful for your input. You can only do your best and you certainly seem to have done that. Well done.

[stonedecroze]

OFT Guidelines

 

I wouldn't spend too much time tinkering then. Make sure the facts are right and go to bed

 

just what we needed, tyvm

That is what I plan to do, not going to have another session like friday, I have a nice bottle of malt whiskey that I received from Santa that i hope to lower slightly LOL

[steven4064]

What caro says

[caro]

I love it when men agree with me.

[steven4064]

Sleep well

 

Stone - I will be available in the morning if you need anything else.

[stonedecroze]

Hows this? will read comments in morning of to bed with my bottle of malt.

 

The Claimant will rely on the following submissions :

 

 

 

 

 

 

 

 

 

1 Delaying tactics:

It is my strong belief that the Defendant has used unfair delaying tactics in an attempt to slow down the proceeding in this case all along the line from my first approach requesting copies of all my monthly statements, some of which I still have not recieved. When I submitted my N1 Claim form to the Court on 12 April 2007 the Defendant filed an Acknowledgment of Service on 18 April 2007 this gave them 28 days from date of service to file their defence, this expired on 30 April 2007. I requested a judgment by default in view of the Defendant's failure to file defence by the 30 April, this was returned on 22 May 2007 as the defence was filed on 10 May 2007 at the very last moment. The Defendant then served me with an Allocation Questionnaire which I returned within the alloted timescale. Then on 04 July 2007 District Judge Law ordered that the claim be stayed until 04 August 2007 to enable the parties to attempt settlement He also ordered that “on or before 17 August 2007 , one of the following steps must be take:” Then followed a list of three options. I have made many and numerous attempts via letter, Email , fax and telephone call to try to negotiate a settlement with the Defendants , All of these attempts have met either a total lack of any response, a “fob off” letter informing me that my complaint was being dealt with and finally a curt note informing me that the Defendants would take no action in my claim until the result of the “test case” was known. Defendants have also on 2 occasions referred my closed bank account to Debt Collection Agencies to recover alleged debt incurred by their, in my opinion , unlawful ongoing charges.

Furthermore, it is my belief that the defendant had considerable prior knowledge of the Test Case being brought by the FSA to the High Court regarding unauthorized overdraft charges, and the agreed waiver on future claims until this case has been resolved and has used this knowledge to an unfair advantage to me. In my opinion in this the defendant has played “fast and loose” with regulations governing their business practices and has used the legal system to its own ends i.e. profit

It is again further to my belief that this test case bears little relevance to my claim, which is for the return of all penalty charges unlawfully levied on my bank account and was commenced long before there was any “test case”.

Abbey National Plc.:

 

 

 

the Defendants,Abbey National Plc. have already settled 100 similar case to my knowledge prior to the announcement of the “test case”, in the attached list the Court will see that Abbey National Plc. were the defendants in all of these cases. These are figures gleaned from on of several web based forums and there must be many more cases that I am not aware of. In some of these Abbey actually filed defences and returned their allocation questionnaires, obliging the claimants to do the same. However in every one of these cases, Abbey have either settled at the “11th hour” or even in the court , where they stubbornly refuse to prove the justification of their penalty charges. In some cases the court has even ordered standard disclosure against defendant bank but those bank have then gone on to settle rather than reveal the details of its contractual penalties.

It is further submitted that the defendant in the instant case has no intention of going to a hearing.

It is submitted that the pattern of cases settled so far suggests very strongly that the bank is merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate right.

It is submitted that this is abusive of the justice system and of the public resource.

 

 

 

 

 

 

 

Human rights

The stay would infringe my rights under the European Convention on Human Rights directly and as enacted in the Human Rights Act 1998. Article 6 of the Convention provides that;

 

“1. In the determination of his civil rights… everyone is entitled to a fair and public hearing within a reasonable time.”

 

It is submitted that the ordering of a stay as proposed is not reasonable. The 8 banks involved in the High Court test case have recently published identical statements on their websites informing customers that they expect the test case to last for over a year. Moreover, the nature and gravity of the case is such that any judgment is highly likely to be appealed to the Court of Appeal and possibly even then appealed further to the House of Lords. It is entirely conceivable that a final resolution may not be reached for 2 – 3 years or perhaps even longer. It is thus submitted that the period of any proposed stay cannot be accurately predicted and would therefore in effect be indeterminate, which is contrary to the right of entitlement to a fair hearing within a reasonable time as provided for by Article 6 of the Human Rights Act 1998.

 

The Overriding Objective

 

The Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. Dealing with cases justly includes ensuring that this case is dealt with expeditiously and fairly and in a way that is proportionate to the amount of money involved. It is submitted that the imposition of an indeterminate stay in a small claims track case involving a relatively small sum, at such an advanced stage in proceedings, is not just, nor is it expeditious, nor is it fair on a claimant who has outlaid sums by way of court fees in pursuit of a legitimate right to seek a remedy.

 

Balance of convenience

 

The sum claimed is insignificant to the bank but it is highly significant to me. Furthermore, although a stay prevents me from recovering my money, the defendant bank is not prevented from levying its charges or interest on debt comprised of those charges so the order of the court has the effect of favouring a powerful and well-resourced institution and does not place any restriction on their continued application of charges which I say are unlawful. Further, many banks are now routinely closing the accounts of their customers who commence claims against them as has happened in my case. This amounts to a sanction for seeking a ruling from the justice system and as such is a basic denial of citizenship.

 

Additionally, the defendant remains at liberty to enter my name on the default register which it and other banks routinely do in respect of unlawful penalties which are unpaid by their customers. The banks have direct and privileged access to this register. They have no need to obtain a County Court judgment before they may enter a default on the register. This default remains on the register for 6 years and causes enormous damage to reputations. Were my name to be entered on the default register I would find it impossible to get credit or a mortgage and I would have to pay higher fees for any credit which I did manage to obtain. The banks would also remain at liberty to bring legal proceedings against me for the recovery of any debt which mostly or entirely consists of penalty charges, penalty charges which are contended to be unlawful, but which consumers would be helpless to challenge in the event that stays are imposed on any claim where a customer is seeking to dispute the lawfulness of them.

 

It is submitted that a stay may potentially mean great difficulty for me and yet be insignificant for the defendant bank. In fact a stay is supportive of the banks litigation strategy which is to frustrate justice by repeatedly taking the claimant to the door of the court and then to settle the claim.

 

The Status Quo

 

The stay does not maintain the status quo. As submitted above, a stay favours the bank by preventing the claimant’s pursuit of its legitimate remedy without placing any restriction upon the banks activities which I submit are unlawful and/or retaliatory.

 

Furthermore, as submitted above the present case concerns a relatively small sum and is at a late stage in proceedings, and therefore I submit that to impose an indeterminate stay is unnecessary, inappropriate, not in the interests of justice and further, is detrimental to my rights in a way which is unfair and inequitable.

 

 

 

 

 

 

Other Issues

All of this has been very stressful to both myself and my husband as we live on a very limited income derived solely from state benefits, My husband was working as a Postman but for health reasons he was unable to continue this employment.We were purchasing our own home but because of the bank charges arising from our reduced income we had to give up our mortgage and pay rent for our home. At times due to charges being taken from my bank account I was unable to buy essential commodities that we needed to live and I mean really basic essentials like sanitary towels. I had to take a loan from a private loan company simply to put us on a viable footing, having to pay exorbitant interest rates that nearly doubled the original loan. As the level of the charges increased I felt at times like I was digging my way out of a hole in the sand, the more I dug out the more sand that fell back in. for instance 1 failed direct debit of £20 will mean a charge of £30, thus next £40 plus the £30 a total of £70 is taken from the account that leaves a shortfall in that weeks money thereby causing another direct debit to fail and the problem escalates from there Government figures say that a married couple need £240 per week to live on. A £30 bank charge levied on this represents 12.5%, if the banks charged big business and wealthy customers at this rate for misdemeanors these customers would soon be taking their business elsewhere. On top of all this Abbey then set 2 Debt Collection agencies on me to recover an alleged debt on the account which they had closed without informing me, which is a breach of Banking Code of Practice and a breach of the Office of Fair Trading Debt Collection guidelines:

Physical/psychological harassment

2.5 Putting pressure on debtors or third parties is considered to be oppressive

1. Examples of unfair practices are as follows:

   
   

1. c. using more than one debt collection business at the same time in repetitive and/or frequent contact by different parties.

   
   d. not ensuring that an adequate history of the debt is passed on as appropriate resulting in repetitive and /or frequent contact by different parties
   e. not informing the debtor when their case has been passed on to a different debt collector

   
   

1. h. ignoring and/or disregarding that debts have been settled or are disputed and in continuing to make unjustified demands for payment

   
   2.7 Dealings with debtors are not to be deceitful and/or unfair
   2.8 Examples of unfair practices are as follows:
   i. Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed , possibly resulting in debtors being wrongly persued
   k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt

   
   

all of these above plus the manner in which Abbey have conducted themselves in this case by their refusal to reply to letters, emails , faxes and telephone calls their refusal to negotiate a settlement as ordered by Judge Laws I submit constitute a complete disregard for the law, the justice system of this country and is an abuse of process and request that this stay be lifted and Abbey National Plc. be ordered to either settle this claim forthwith or attend a hearing to argue its case

 

In the alternative

 

In view of the preceding paragraphs, if the court accedes to the defendant’s application for a stay notwithstanding these objections, I respectfully request that the court issues the following injunctions:

• That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter.
  
• That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter.
  
• That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998 )
  
• That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data protection Act 1998.)
  
• That these injunctions remain in place until the settlement of my claim.
  
• That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent.
  
• That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent.

I, the Claimant, believe all facts stated to be true.

 

 

 

 

[Lula]

Blooming Well Done Stone, you certainly deserve that Malt tonight

[elsinore]

Great work, ABG and Stone.

 

All the best for Tuesday.

 

Els

[abroadgirl]

oh my what can i say i carnt say itenough

i am very very grateful to stone, and i find i cannot thank him enough

i would also like to thank each and everyone of you here in my thread you have all been gems and are my stars, i thankyou each and everyone of you for everything to be honest i was going to as they say thrown in the towel but you all kept me going and i cannot stress enough how grateful i am to you all

THANKYOU SO VERY VERY MUCH

im feeling a lil down and my stomach is going over n over its just the thought of tomorrow but take deep breaths and look on the bright side i guess

thankyou all for everything

 

thankyou so much to those who has offered to come with me and help me with all this paper work, please if anyone does still want to come and see what happens and what they say please do at blackpool county court at 2pm

laughs youre all welcome

hahahahaha

lol

thankyou all

 

 

 

from abg

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

[jansus]

fantastic work stone. So glad some practical help has been offered to this particular case.

 

Best of luck for tomorrow. Even if the case is still stayed at least the courts will know what Abbey has put Abroadgirl through.

 

Jan

[ICY]

Hi abg ive not been around for a while, hope all goes well or you tomorrow, good luck, hurry back to let us know how everything went.

[steven4064]

All the best abroadgirl and stone.

 

Let us know as soon as you can - there'll be a load of people hitting the 'refresh' button every 5 seconds until there hear the result

[stonedecroze]

we both extend our gratefull thanks to all who have helped us with this. we have just put it to bed , all done and dusted, it`s all down to the judge now. But we are both feeling confident of success. Thanks again . you know who you are. :D:D

[ohoh4312]

Very best of luck today abg. I sincerely hope it goes well for you.

 

Fingers/thumbs/knees/toes crossed (very hard to do, you know!)

 

Lotsa luv

 

Jo xx:)

[caro]

we both extend our gratefull thanks to all who have helped us with this. we have just put it to bed , all done and dusted, it`s all down to the judge now. But we are both feeling confident of success. Thanks again . you know who you are. :D:D

 

Glad you see you're feeling confident. If deserving to win has anything to do with it you can't fail, but in case that doesn't work I'll have everything crossed too.

[jansus]

thinking of you both

 

jan