Chicobanco v A&L (Help needed, please!!)

[chicobanco]

Hello Everyone,

 

(Help needed, navigating the court system, please!!)

 

Claim filed on MCOL 29/06/07

Served on bank & acknowledged by sols 04/07/07

Amount claimed £982.13

Defence received from sols 17/07/07

Copy of Defence from court received & notice of transfer 21/07/07

 

I am sorry but my first posting is a little long. I am new to the CAG & the forum and I have been reading all the various articles and posting on this site with great interest and to gain more knowledge and tips on reclaiming my money, taken by the Bank in “Unfair bank default Penalties”, by way of the small claims court. I am a complete newbie to the whole process so I have lots of questions.

 

Firstly, I must say I have learned an awful lot for this site. Thanks to this site I managed to avoid falling at the first hurdle, namely, an inadequate POC submitted on MCOL. I have subsequently issued two copies of my full and comprehensive POC to Northampton CC, with schedules detailing the Unfair bank default Penalties I am disputing and that I want refunding (i.e. date taken, amount & description), my costs and interest I am claiming under the CC Act 1984. I have asked the court to send one to the Bank.

 

I am prepared to issue this information again and I am about to post it to the Bank directly and post a copy to their solicitors, Wragge & Co.. However, I have now been informed that my case as been transferred to my local court, but I have not received an acknowledgment of my full and comprehensive POC etc. from the court yet. I have read on the forum that I should wait for this acknowledgment before I send any copies direct to the bank and sols.

(Okay, here's my first set of questions)

 

Is that correct and what is the reason behind waiting for this acknowledgment from the court?

Do I still send a copy of my full and comprehensive POC etc.to the Bank & sols? Or should I contact the court before I do that?

If I should contact the court, which one MCOL, Northampton or my local court?

 

I know that my case as been transferred to my local court I am (assuming that my claim as not been struck out as having an insufficient POC) awaiting an AQ from the court. Looking at the new departure to the system taken by the courts I doubt I will be asked supply an AQ, but I am taking nothing for granted. I am treating this as though I will have to appear and in court and make my case in front of a Judge and solicitors. So I have prepared my AQ. Now I am preparing my court bundle for submission. Hence I have more questions and would be pleased if someone can answer them and enlighten me in my fog of ignorance about all matters legal.

 

If the solicitors should fail to file their AQ to the court on time or not at all, how will I know about this? Will the court inform me about the transgression?

I understand that at this point almost all the banks fold when a direction is made for them to produce their court bundles in support of their defence. So if they fail to serve me with all the required documents/information as given in any direction from the court do I really need to write to them/sols to remind them? (See the CAG forum section on ‘Directions non-compliance letters’). Can I not simply let the deadline pass and notify the court the of the transgression and request that their defence be ’struck out’?

If they don‘t produce the information as directed can they present it at any subsequent hearing? Would I not be in a better position to win by default if the defence did not serve me with their court bundle?

Now that I have recieved a copy of the defence from sols (standard 6 page blurp from Wragg & Co. nothing new in it.) should I reply to it and if so should I send a copy of my reply to the court?

 

I have already incurred additional costs in the course of providing copies of the relevant information to the bank and solicitor over and above those detailed in my schedule of my

costs attached to my POC.

 

Can I claim these back and any future reasonable expenses I incur between now and full settlement and if so how do I go about doing this?

 

I did not include in my complete POC on my schedule of costs a claim for the S.A.R - (Subject Access Request) fee £10..00.

 

Can I add this on in someone to this current proceedings?

 

Sorry for the length of this first posting.

 

Thanking you all in advance for any advice, references and support you can provide me on these matters.

 

(I hope to me making a donation when I receive full settlement).

 

Chicobanco

[jansus]

bumping your question up - sure somebody will help tomorrow when we are more awake:eek:

 

jan:)

[MimiJane]

Hi there,

 

Welcome to the forum and well done on obviously doing a lot of reading ... it can be very confusing at the start and you need to ask loads of questions.

 

I'll do my best ... here goes :-

 

Firstly, I wouldn't ask the court to forward anything to A&L/Wragge and don't rely on them to do this, they're extremely busy. You should send anything direct to Wragge yourself.

 

After starting court proceedings, you should deal with the solicitors (Wragge), unless you're actually replying to correspondence from A&L of course. Copy in A&L on letters to Wragge by all means (I didn't bother, as they liaise with their client anyway) and the court where you think it's appropriate.

 

If you feel you need an acknowledgement from your local court re. your POC, you could always try ringing them to ask. From now on you should deal purely with your local court; Northampton is the "Head Office" that we all have to deal with initiallly. It's a good thing to make contact anyway, as you'll no doubt have to call them again.

 

It still seems to be 50/50 as to whether or not you'll be asked to complete an AQ, but you shouldn't have to pay the fee of £100 (if your claim is over £1,500 you normally have to pay it, regardless of whether you have to complete an AQ or not).

 

If you do go to court, Wragge will not be there ... they've never turned up yet and have been instructed by A&L (it appears from many threads) not to go into the court room. They often however appear in the foyer before you go in trying to persuade you to accept a lower offer:rolleyes: You of course ignore them. However, you are wise to treat your case seriously as you may of course have to attend court.

 

There seem to be more and more people having to attend preliminary/direction/AQ hearings now before the main hearing and, on some of these occasions, Wragge do turn up. It's more unlikely you'll reach full hearing stage as the solicitors do tend to get more and more agitated just before court and ever increasing offers start rolling in.

 

They very often do not submit their court bundle at all (and certainly not within the time specified by the judge) as the judge sometimes asks them to declare how they reach their "charges" and why they're not "penalties". They've never submitted this info. yet, in which case, you win by default. This is not "standard" though by any means and they may asked to produce any number of things by the judge within a certain time frame.

 

Both you and Wragge have to submit your "court bundle" to the other party AND the court, so you'll know yourself if they submit anything or not. ("File" means to the court and "Serve" to the other party). No need to remind them ... you don't want them to reply:rolleyes: The judge will either refer it back to the court after the specified date and make "another order", which means basically giving them more time or, if this is not specified in his order, you can write to the judge requesting "judgement by default". It will all become clear as you go along.

 

Have you received your "Directions" from the judge together with a court date? It doesn't sound like it, so don't start putting together loads of papers you may not need. My bundle came to 230 pages, but a "bundle" could just be your charges sheet or run to many other documents you're asked to include. It's very important you comply with what you're asked for ... by all means read up on this (see my A-Z link in my signature), but don't get too ahead of yourself and prepare anything until you know exactly what's required.

 

There's a thread on the A&L forum comparing different defences that people are receiving from Wragge. It's a good idea to have a look (though it does get a bit "chatty" on the last few pages, we need to keep each other sane!). If they state you have not "particularised" your claim, most people have written to them sending a full copy of their charges schedule, stating they've already sent this to A&L and the court (if you haven't done this, do so by email or post) and you hope this clarifies your claim. By all means copy in A&L and the court.

 

You can apply for "Wasted Costs" when your claim has been settled. Save all your receipts/Recorded Delivery slips, etc. along the way. Again the A-Z will explain what you're entitled to in detail. You'll be surprised how your costs mount up! You do have to be conservative with your costs though to have more chance of successful (many judges will not award them). I'm not certain about the £10 SAR fee being re-claimable ... not heard of anyone claiming this, so probably not, though someone might advise otherwise.

 

When you get your Directions from the judge, post them on here, so you can get feedback on exactly what's required. At this point, send me a private message if you like (click on tab above) and I'll send you my Index of Documents to help you.

 

Phew, well I hope the above helps you and do hope I've managed to answer the majority of your questions in a manner in which you understand (it's getting late and my fingers are getting tired ).

 

Off to bed now.

 

Good luck and post away as you continue with your journey.

 

Mimi x

[chicobanco]

Thanks MimiJane & Jansus. I honoured to receive a reply from MimiJane, I've been reading loads of your postings on here over the weekend.

 

Okay MimiJane, your reply has set me straight. I will send my stuff to Wragge's on Mon recorded delivery & a copy by normal post to A&L. I won't bother asking court for any acknowledgment of my filing of complete POC.

 

I have taken your point about reading a thread on the A&L forum comparing different defences that people are receiving from Wragge. Can you tell me where and how I can get to it please? (Sorry I'm a bit dim when it comes to navigating around these kind of sites, I'm learning by trial [no pun intended] & error).

 

Final question, do you think it is wise for me to respond to the defence by serving & filing a rebuttal, or would I be wise to keep my powder dry for now? I'm thinking that if I get rebuttal in now the Judge may read it and it may strengthen my argument. Any thoughts guys would be very welcome.

 

You were correct in your assumption. I have not been given any direction by a Judge yet. My case only got transferred to my local court on 19/07/07. I will not prepare any bundle yet, I will wait as you advise, but I will do my research now. Better to do it now & to have a good idea of what will need and what extra I can add to the bundle to strengthen my case, eh.

 

As for dealing with sols trying to ambush me in court that for me is the easy bit. Negation is where I am good (one of the best if I dare say so) . Although I don't work in the legal industry my work as given rise to me dealing with sols in the past and I have had many an happy hour crushing sols. If there is something I can offer back to the CAG site and this A&L forum is some sound principles in how to negotiate. There are some very simple rules. If you stick to them and did blink you will always, always get the deal deal and most often get everything you want. So if anyone would like to know how to set your mind and strategy out give a shout or just ask me. I will be glad to help.

 

I'll keep you posted on porgress of my case, if anyone wants to know how things are going.

 

Once again guys many thanks for clearing the fog and little. I can see my target large and clear. (A&L here comes another one of those A&L FFs).

[rich2568]

Welcome Chicobanco!

 

Great to have you on board- you`re now with people whose intentions are to `bash the banks`- until they surrender!

 

Nice to see you`ve read lots- the more the merrier!

 

Regarding your attempted rebuttal. I would read as much within the A & L Forum as poss. Here`s a link to get you started http://www.consumeractiongroup.co.uk/forum/alliance-leicester/

 

It is sometimes difficult to explain exactly how to get to certain parts within the site- trial and error is best to say the least;)

 

Although I don't work in the legal industry my work as given rise to me dealing with sols in the past and I have had many an happy hour crushing sols. If there is something I can offer back to the CAG site and this A&L forum is some sound principles in how to negotiate. There are some very simple rules. If you stick to them and did blink you will always, always get the deal deal and most often get everything you want. So if anyone would like to know how to set your mind and strategy out give a shout or just ask me. I will be glad to help.

 

 

This quote from yourself does sound interesting though- mmmm.....?

 

Have a successful browse through as much as poss- remember the more the merrier!

[MimiJane]

Hi Chico,

 

Rather than give you a "link" to the defence thread, I'll tell you how to get there, so you'll know in future :-

 

Go to the CAG home page and you'll see the "Menu" on the left. Click on "Consumer Forums". Schroll down and you'll come to the forums ... by bank. Click on the A&L forum, schroll down to the last section and you'll see all the threads. The one you need is "Here is Wragge's 6 page defence".

 

Read with interest that you're used to negotiating with solicitors. Many of us are similar in that we turn to gibbering wrecks when talking to Wragge on the 'phone:rolleyes: Ridiculous and frustrating when we're all grown up responsible(?) people, but I suppose it's not something we do every day and they seem oh so powerful to us. I'm sure you'll be able to inspire some confidence for many of us in the future ... thanks!

 

Good luck and keep us posted.

 

Mimi

[chicobanco]

Okay, like I said if you need help in negotiating with solicitors just let me know.

 

My first advice to anyone would be do not negotiate with solicitors over the telephone. There are many good reasons why you should avoid doing this. Here are a few:

 

1. It is difficult to keep an accurate record of what was actually discussed point by point, if you have a fairly complex matter to discuss.

 

2. Obvious one this, but we all forget it. Sols / Legal Execs. have considerably more knowledge about the law. (Its what they do for a living to pay their bills.)

 

3. Just because they know more about the law does mean that they are always right, but they do have more practical experience of the legal system, so they know how to make it work in their favour. Also they litigate/debate almost every day at the office or in court so they get good at it.

 

4. When you phone them they will be sitting in their office. There they will have at their finger tips access to far more resources than you and I. This gives them an advantage.

 

5. Finally, if you are not very certain of your abilities at debating you could end up on the wrong end of a verbal whipping. So do yourself a favour, avoid it and you pick the method by which you will take them on. In that way you can even the playing field.

 

Given all of the above I agree sols can be very intimidating to deal with. Some of them do have brains the size of planets. So what can you do? They appear to hold all the cards, so you may as well give up, right? No way! Here are some tips.

 

1. Try and do all your negotiating and communication by correspondence (email or letter). Some of the letters I have read here are very well constructed containing some very good arguments with in them. When you are composing a letter / email you have time to think and re think you arguments and counter those of the defence.

 

You have to be very good to do that off the top of your head over the phone or face to face. To be able to do that takes a little practice, a little knowledge and a lot of confidence in your abilities. Things we don't have time to learn now.

 

2. If you do have to deal with them over the phone or you know you might meet them in court prepare yourself.

 

Think about what it is you want to get out of the negotiation. Negotiating is a little bit of an art, a skill, a game. A dance, a ritual and war. It is all these things and more and how you approach it will determine the outcome. But negotiation is easy if you follows some simple rules.

 

FIRST, know what it is that you want to get out of the whole process, at the end, exactly. Write it down, it will be your bible and guide, refer to it throughout the whole process. (We will return to this a little later).

 

SECOND, if you are going to be talking on the phone think before you speak. At the start of the call ask the person for their full name (make them spell it out for you and write it down. Sound silly but we forget to do stuff like that when we are under stress.) Ask them for their position in the company. Don't be intimidated by their title of rank. you don't really care you just shaking them up a bit and putting them off balance so you can strike first and let them know you mean business. Try and get your offer, claim or position in first This will help you to dictate things because they have to respond to you and you can dictate the pace, hopefully. Take your time. Don't rush. Slow down everything you do and say to half your normal speed. Your heart will be pumping. Fine, but your head will be cool, calm and clear in all that you think and say if you slow down.

 

THIRD, listen, listen and listen very, very carefully to everything word that is said to you, even if they are winding you up. Don't respond to any questions or comments straight away. Think about it before you respond. Write what as been said down and study it. Make the other person repeat it and make them wait. Tell them you are thinking about what they have just said, make them WAIT. Silence on the phone is an absolute killer to the other person. It makes them sweat. Surprising to hear but it's true. Also your slow deliberate tone will come across as thoughtful and powerful and tell the other person that you are in control of the negotiation. Trust me just try being on the other end of the phone with someone who makes you wait and move at their pace during the conversation. It is a killer for the opposition.

 

FOUR, your tactics/battle plan.

 

Always set yourself three negotiation position before any kind of negotiation. These will be your positions or stance throughout the whole process, whatever form it may be conducted in. (Letter/email, phone or face to face). YOU WILL NEVER EVER DEVIATE FROM THESE POSITION UNDER ANY CIRCUMSTANCES!

 

1 Your ideal position

 

This is always your best position. This will probably be what you want to get out at the end of the whole process. (Your bible and guide.) It is the one that the other side is unlikely to agree to or even consider, but you always state from the outset and you state like you believe it. Depending on your circumstances and the defence you may have time and the luxury to repeat it and to ask the sols to put it to their clients for them consider it. It is likely to be rejected, but you are just breaking them down and softening them up for your next move. When this position is exhausted you move to your second position.

 

2. Your second position will be your half way position.

Your half way position is lower in its aims than your first offer (ideal position) it will give the defence a little room for manoeuvre but not too much. Again depending on your circs' you may repeat it. Ask the sols to put it to their clients. Push this position hard, this is one you want them to accept. Make them really work to reject it. Ask them "why won't you accept it?" "Have you put this new offer to the bank for consideration?". "What was your client's exact response to my offer?" "I don't think you understood the offer I will repeat it for you again." Be prepared to repeat your conditions/positions or requirements thee or four times. The sols may get short with you. Good you have rattled them and they are getting tired. Make them wait while you think, tell them you are thinking tell them that you are not happy and you want to speak to someone more senior; but don't push that point too hard. It is meant to undermine the sols / legal execs confidence. No one will have ever said that to them before, that is a real blow to their ego. If you have exhausted this position you will move to your finally position. They may reply "You will only be told the same thing by the senior partner etc." No matter you are softening them up again.

 

3. The fall back position.

This is the absolute minimum that you will accept. UNDER NO CIRCUMSTANCES WILL YOU EVER, EVER ACCEPT ANYTHING LESS FROM THE DEFENCE THAN THIS POSITION. If the defence will not meet this position then all bets are off . Sue them.

 

Things to remember.

 

Always listen very carefully to every word. Make them repeat things slowly to your satisfaction. This will help you and throw them off balance. Never ever raise your voice or shout over the phone in a negotiation. This will only tell the sols that they have rattled you and that you are losing the battle. Remember he who shouts first loses the argument. Even if you feel like you have been slapped down stay calm and cool and professional, you will be surprised at how much your tactics can knock them for six.

 

THIS BIT IS IMPORTANT ALWAYS, ALWAYS REJECT THE FIRST OFFER. Only a MUG accepts the first offer. The first offer is a tactic, it is not genuine and you are being screwed again, so reject it. You always get an improved offer. If you don’t then they were never serious, but you will get a better offer. You must decide then if the improved offer is good enough for you.

 

This is the tough bit to explain, you can only judge how well you are doing by the person reactions and the sound and speed of their responses. There is no way for me to explain this it take experience to detect it because no two situations are the same. What you need to remember is that if you stick to these rules then no phone call, face to face meeting or letter will ever be wasted even if they refuse to negotiate or turn your offers down. It will score points and score better in the eyes of the court, should it get there.

 

One more think. Be realistic about your second and third negotiating position if you want to negotiate a deal and are prepared to settle for less than your full amount. Remember do not accept anything that takes anyway your rights under the law to sue the bank again, it's probably illegal anyway. Make them remove any such references from any deal you strike.

 

I suspect most of us here will want to make them pay up the lot. In which case this whole process may appear to be a waste of time. Far from it. Good negotiation will weakens the resolve of those handling your case. Unfortunately I cannot prove this to you here, you will just have to take my word for it.

 

Okay, this is just a short insight to some of the things you can do. I hope it is of some use to someone out there. It is best if you let me know what it is you need help with and I will see what I can do.

 

Cheers

 

Chicobanco

[MimiJane]

Excellent advice Chico

 

Many thanks for the time and trouble ... I know we'll all be grateful for this.

 

Mimi x

[chicobanco]

No prob's mimi. It was nothing. Anything I can do to help.

 

Today I phoned the court, they were very helpful. I inquired if they knew whether or not I would have to complete an AQ form. I was told that the DJ at Northampton had sent my claim to my local court ruling that an AQ form is not required in this case. I forgot to ask if I will still have to pay a fee (duh) but my claim is below £1000.00 so I'm assuming i will not. I'll phone again tomorrow and check that bit out.

 

Interestingly the court clerk said and I quote "these cases are being treated differently so the rules are not the same ". So it sounds like the courts have recognised that the system is being abused and they are moving straight to the next step. It appears more and more likely that it is 60/40 that they will not issue an AQ, I'm guessing this will be even more likely for claims less than £5000. Maybe some one can spread the word out there for me, I'm still new to this place and don't know how to do that yet.

 

They informed me that they are pretty busy and they have dates set for hearings far into the future. If I have anything very urgent I need to get to them I can fax it, but it must not be too long. Otherwise I can post (recorded deliveries they always sign for) or hand deliver it in person.

 

You can, if the DJ agrees to it, approach the court usher and ask to set in on a closed hearing. The court clerk did not know this so she had to ask and she was told it was possible. Something I read on this site said it was possible and it's a good idea to have a dry run to prepare yourself, although I don't expect I will get my day in court.

 

So now I need to wait for a direction from my local court. However, I think I will take the advice of some here and drop a letter into the court tomorrow respectively suggesting that special directions be made as per the templates on here to require the defence to disclose such information as the describe the true loss and cost to the defendant and how the charges incurred have been arrived at.

 

Regards

 

chicobanco

[MimiJane]

Hi Chico,

 

It sounds as if you have everything in hand It was the case recently that, if your claim was below £1,500, you did not have to pay a fee. I, like you, did not have to fill in an AQ, but did have to pay the fee. I presume it's still the same, but obviously best to check.

 

Good luck and keep us posted ...

 

Mimi

[chicobanco]

Hi Guys,

 

I phoned the court and I was told that because my claim is below £1500.00 I would not have to pay anything now that the AQ step has been dispensed with in my case.

[rich2568]

Looks like you have everything in hand now-- GOOD LUCK!!!!

[chicobanco]

Hi Buddy,

 

Nice to hear from you again. Where have you been, on another part of the CAG site? If so did you find anything useful worth my while having a look at?

 

Regarding my case, well I'm not over confident. However, I have been looking at this defence I have received from Wragge's. I've decided to pick it apart. Now that I have read it three times and carefully it does not say much. All it is saying is 'we don't agree that the charges taken were unfair or taken illegally because our T&C said we could do it, and you agreed to 'our' T&C.'

 

Now I know the banks have got a pretty weak case but frankly I expected better from a group of top notch sols. So I think I may try and compose a blistering demolition of the defence, point by point, and challenge them to substantiate each point of their defence by producing the evidence that the charges are not extortionate in terms of the real cost the bank may have incurred.

 

Cheers for now

 

Chicobanco

[MimiJane]

They refer to their T&C's time and time again in all their defences it appears ... grey area, so most likely their best (and safest) bet in their eyes:rolleyes:

 

Keep us informed.

 

Mimi

[chicobanco]

Hi mimijane,

 

How are you.

 

Re the T&C, I have just spent the last 40 mins reading through it with a magnifying glass (I kid you not).

 

Guess what? I think it has got holes in it, and can be shown to be vague and open to abuse on the part of the bank or at the very least their is a clear imbalance of power written into the T&C in the favour of the bank.

 

Crucially A&L refer to it at one point as being 'their T&C'. This implies that if you bank with them you do so under their T&Cs which they can vary at anytime as they see fit. (Okay, we all know that that was the case but to put it in writing, well...)

 

Also, they say that it is their records that shall be the deciding factor on whether they are or are not at fault for something. Excuse me?

 

 

I suggest people have a read of it a bit at a time and see if they can find stuff to discredit the T&C. Discredit the T&C and you increase the chances of the court taking the view that on the balance of probability that the charges are likely to be excessive , unfair and illegal. When you add that to the rest of the stuff we are being advised to submit in our court bundles our case just gets stronger.

 

 

Chicobanco