Penfold V Barclays (Woolwich) No agreement and taken to Court

[Penfold92]

Hi,

I was not getting much help or info from the Woolwich board so I am posting here as this will have interest to a few others I imagine.

Many many years ago (Like 9-10years!) I had a Woolwich Account with an ex wife. We split and that account became a debt. I have no idea how I imagine her spending etc. I do not remember getting a default notice nor how it ended up at Equidebt Limited, but it did. I agreed payments and have been paying religiously until now.

I decided it was time to find out what I was paying, why etc. I asked for the CCA agreement or what info they had on this. Surprise surprise Equidebt said they sent everything back to Woolwich (so debt was NOT sold on) and Woolwich said "too old no info!". I truly cannot believe the arrogance of the banks! So I proceeded to issue an N1 form at my local court with the following POC:

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

12. Accordingly the Claimant Claims:

 

a) the return of the amounts paid to Equifax Limited in the sum of £1038;

b) Court Costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 28/05/1998 to 06/07/2007 of £478.37 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.23

I believe that the contents of these particulars of claim are true.

 

 

Now I got in contact with Barclays litigation to speed things up (I thought) and now I hear they will defend. They have until 4pm Monday so no doubt something will turn up on Monday morning.

In the meantime I would love to have people’s views on this matter over the weekend, whilst I am waiting to find out what they are going to say. I mean are they really going to tell a Judge "we don't know much about this except he did owe us the money and so please don't judge against us!"

Has anyone else been in a similar position or done the same sort of thing?

Penfold

[Penfold92]

why do you think you are entitled to get your money back?

 

Because I should not have been forced to pay it in the first place! I did not spend it, I have no records on it nor do the bank.

 

Why should the Bank be allowed to force me to pay it? Is that not the better question? I am questioning the legalities not the morals Sequenci! Bank charges are legal too remember???

 

Penfold

[Penfold92]

me too! i'm just keen to ascertain what grounds you are using to get this refund. i'm not questing anything but the legal argument!

 

i'm interested in it, i'm not judging you at all!

 

Sorry Sequenci, but I have had many many moral battles over the years including the messy divorce that created this debt in the first place! Anyway see below and please please anyone have any ideas? By the way I started quering this early this year after settling my IVA, but note not once in 6 odds letters from Woolwich/ Barclays have I been even given the account number! So where did they make the below up from exactly?

 

OK Got Woolwich defence today (waiting for me at home). I will post my POC with the defence underneath each one. Please help in picking holes in any of this….

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

It is admitted that the Claimant had a Woolwich current account number XXXXXX

Well at least I know the account number now as they never told me it in any of their correspondences!

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

This is admitted

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise.

I believe I said I was not the “main” account holder even if the account was joint. I did not say I was not an account holder. I am saying I believe it to be inaccurate because I have no records on the said debt. As such I believe I am within my rights to question its contents, how it came about and everything about it. Or am I wrong? Do I need to prove it is inaccurate or is it down to the Defendant to prove it is not?

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable.

Overdrafts and any credit under £25,000 is regulated under the CCA or am I wrong again here? If I am right then they are in breach as they have not supplied any details whatsoever regarding the debt or account

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”.

Ok where do I start…In simple English for the Defendant there is no Law that says data must be destroyed only guidelines. I believe (and obviously could be wrong) that I have a right to question the accuracy of information especially from a Bank who says I owe them money whenever I feel like it especially if recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in my statement. By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? Is the closing of the Equidebt Account (due to the creation of the IVA) not a transaction as well?

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

The defendant denies that account number XXXXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance.

Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments!

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007.

Well this is where I think this gets interesting…Firstly, as stated before an overdraft is regulated under the CCA so there needs to be an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! So this blows this out of the water OR am I missing something once more? This debt has NOT been repaid in full! I have letters chasing me in 2005 and it has been entered in the Court bundle when my IVA went through in 2005. Funny if they are not trying to enforce it why was it entered into the IVA and why did they not say “hold on, you have paid this off mate…”. So they were in fact still enforcing the debt. I do not understand the bit about Section127(3) only applying to regulated credit agreements after 2007 when it was in the CC Act in 1974? Can anyone explain to me what they are on about?

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision.

So since I can prove they were trying to enforce it I guess that blows this one out too? As for the case, it is all about a non existent credit agreement where the credit company had to refund all payments made…in a nutshell anyway.

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited

LOL they are hardly going to say have it here mate…

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

Is not admitted

12. Accordingly the Claimant Claims:

a) the return of the amounts paid to Equifax Limited in the sum of £1038;

b) Court Costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 28/05/1998 to 06/07/2007 of £478.37 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.23

I believe that the contents of these particulars of claim are true.

This is denied

So I recon their strongest sections were if I had paid this off and they were not trying to get money out of me. Can anyone please tell me if the customer has a right to question their account at any stage and if so is it in any legislation or just in terms and conditions?

Thanks,

Penfold

[Penfold92]

interesting thread

 

Which bit in particular? Just curious

 

Penfold

[Penfold92]

Normally there is no case for the refund of monies paid on a debt just because the debt is unenforceable. The debt still exists and was liable to be paid. However it appears that Barclays are contending that the debt [£1038]was paid off in April 2005.

Therefore as it appears you have overpaid, they should repay the balance.But if the debt has been paid they do not have to supply you with

details from your CCA request.

It would appear that your case will therefore fail if you are taking them to court for a breach of the Consumer Credit Act.

But I am surprised that they have not offered to repay any monies paid after

April 2005-plus interest.

 

The debt was not paid off. I paid a total ove £1038 over 9 years to Equidebt, I was still being threaten in 2005 for the other £740. Due to other financial pressures I entered an IVA and the remainder of the debt was put into that. If it has been paid off at all it was last month when I completed the IVA early bu selling my home!

 

I asked Woolwich for T&C's when my account was opened, they have not supplied, I asked for default notice and info, they have not supplied, I am the Claimant they are the Defendant, why is the owness on me to prove as per their defence rather than them to show me given I am taking them to court?

 

Penfold

[Penfold92]

I was thinking of writing a type of nudge letter to Barclays Litigation, but now I am thinking let's go to court and then bang I tell the judge the above points and let the barrister/ lawyer look a plonker without knowing the facts about his client...Or am I withholding info? Am I obliged to tell them they have the wrong info?

 

Penfold

[Penfold92]

No defence needed to be filed by MOnday and they sent directly to me. I know what you mean about the Wilson case, however, is it not worth a try? Are Barclays going to really wait and see what the Judge says especially if they are uncertain what I have on them since they have so little on me (apparently).

 

So what is the opinion, should I let Barclays litigation know they got it wrong or let them look silly in court, cause I will go...

 

As for getting money back...I have been told by HSBC I will not get my charges back, how many of you out there have also been told things by the Banks or even defence solicitors? I do not expect to get it back, however, if I do great or at least I can ask the Judge to get them to refund the court costs as they should have acknowledged the debt did exisit, give me my account number and be more cooperative towards me.

 

Votes please...

 

Penfold

[Penfold92]

so to get my facts straight, this debt was part of the IVA of which these guys were involved with?

 

Yup they were part of the IVA arrangement, although interestingly enough they were not paid last month...But they were in the initial paperwork that went to the court!

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have they sent you a full statement of account as part of your request under the CCA?

 

No, they have no info and "not obliged to keep it"

 

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yes, they are certainly regulated sir. they are just exempt from PArt V of the act.

 

 

What I thought

 

 

 

Seems like they have their wires crossed on this one. s127(3) is relevant as this debt was pre-6th april

 

Again what I thought

 

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The wilson case was a little bit different and i'm not sure it is going to be relevant, i'm dying to be proven wrong, however.

 

Me too...I am not holding breath, but I really do not believe they will let a judge decide for such small amounts, surely their barrister would cost more than I am claiming? I just want to see their face when we go to court and they repeat the defence and I say "actually your honor, that is not right, here is proof that they were chasing the debt, it was entered into an IVA in this very Court and so what is their defence all about really when they have breached the CCA?"

 

What you recon? No chance or slim one?

 

Penfold

[Penfold92]

Ok,

 

Thanks for that lookingforinfo,

 

The debt was not paid in 2005 like they have stated and like I said I have letters from Equidebt chasing higher monthly payments! I entered the IVA in 2005 and Woolwich were on the court papers. I settled the IVA early last month so technically it is settled now, but there is no payment to Woolwich from my IP so either they withdrew (after my letters) or my IP agreed with me that they had no claim and did not pay them. I honestly do not know, but I do know what they have written in the defence is most definately wrong...

 

Point taken so I will wait until directions from the judge then depending on timescale email my Barclays Litigation chat a nice little bombshell, how about:

 

Dear XXXXXXX,

 

Thank you for your letter with the defence for Woolwich Bank please be aware that this is not a personal or moral issue, but a matter of legalities and responsibilities. I could very easily just wait for the Judges directions and even our date in Court, but I hope my responses to your defence may help us resolve this earlier and hence not wasting the courts time. Failing that at least I can show the Judge I am trying to resolve the matter. I am happy to continue to communicate via email if you wish, as it saves postage, paper and our planet.

 

What I would like is for your client to admit the case, and be finished with it. I will accept a Bank Transfer/ cheque, as I stated previously, for £1636.00 and that will be that, claim 7LU02480 finished with!

 

I will answer your defence after each point you raised, please feel free to reply or not, as you see fit, though an acknowledgement would be nice. I would also like to point out that I understand case number XXXXXX has just been awarded Judgment. That case was against Monument (Barclays Bank) and whilst I appreciate each case is different it has similar issues with no legal credit agreement in place.

 

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

It is admitted that the Claimant had a Woolwich current account number XXXXX

Well at least I now know the account number. I was never given this information in any of the eight different letters I received from Woolwich/ Barclays/ Equidebt/ or Heatons. You would have thought that was the first simple piece of information I could have been given.

 

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038

Well this is the first incorrect fact you have quoted. I was actually supposed to repay a total debt of £1778.05 NOT £1038 as you have quoted. I have a statement of account from Heatons Solicitors regarding this debt who have confirmed this amount and the payments I made.

 

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

This is admitted

This was not complied with and hence Barclays/ Woolwich are in breach of the Consumer Credit Act. I understand this debt is from a current account with an overdraft. This is most certainly regulated under the CCA and I do not need to tell you that.

 

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise.

I believe I said I was not the “main” account holder even if the account was joint. This was my ex-wife’s account and I was added on later. These have not been supplied as yet. I did not say I was not an account holder. I asked for the terms and conditions in place at the time I was added to this account.

I am saying I believe it to be inaccurate because I have no records on the said debt apart from being told over the phone it was an overdraft that was not paid back. As such I believe I am within my rights to question this account, how it came about and everything about it. You are asking me to prove this, however, I cannot without seeing statements of the account and further to 3 above they have not supplied this to me.

 

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable.

Overdrafts and any credit under £25,000 are regulated under the CCA. Therefore once again Woolwich are in breach as they have not supplied any details whatsoever regarding the debt or account.

 

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”.

Ok where do I start…In simple English for your client there is no Law or Statute that says data must be destroyed only guidelines. I believe (and obviously your client thinks I am wrong) that I have a right to question the accuracy of information held on me. Especially from a Bank who says I owe them money when recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in what I said.

By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? What was account number 3WXXXX\54\1 all about then? This was the Equidebt account number so even if you say the original account was closed or frozen another was created in its place and given this was also still directly linked to your client, the Defendant. Surely this merits being an active account as transactions are regularly taking place on it and I am sure a Judge would agree with me on that point. If you want to argue that point then why was the account closed with Equidebt in 2005 and they passed the files back to the Woolwich? I have a letter from them to confirm this point. Is the closing of the Equidebt Account (due to the creation of my Individual Voluntary Arrangement in 2005) not a transaction as well? Are you saying that your client was in direct breach of the FSA regulations then as well as what I am claiming they are in breach of?

 

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

The defendant denies that account number XXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance.

Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments! The debt was not sold on and so Woolwich were in direct receipt of the monies paid. As stated before even if you wish to say the original account was frozen another one was created. Please provide me with the definition of what your client defines an account as and also where I signed to agree with that definition. In any case I think I might just let the judge decide on the definition of an active account.

 

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007.

Firstly, as stated before an overdraft is regulated under the CCA so there must have been an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! This debt has not been repaid in full, I am sorry to say you have been misinformed here! I have letters chasing me in 2005 for payment and it was entered in the Court bundle when my IVA went through in 2005. If your clients were not trying to enforce it why was it entered into the IVA and why did they not say that I had paid this off in full? So they were in fact still enforcing the debt as I understand they even voted at the creditors meeting. As I am not a lawyer I do not understand what you said about Section 127(3) only applying to regulated credit agreements after 2007 when it was in the CCA in 1974? Please could you clarify this for me?

 

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision.

Please refer to the above paragraph as Woolwich were in fact still trying to enforce this debt. As for the case, it is all about a non existent credit agreement where the defendant had to refund all payments made. As I stated initially you may wish to refer to case number XXXX for a more recent case, where Barclays (Monument) were trying to enforce an unenforceable agreement.

 

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited

I would not expect you to say anything else as I understand you have to go through the motions.

 

Can I make this any better anyone?

 

Thanks,

 

Penfold

[Penfold92]

I think you may have been trying to score too many points to get the main

one across.

 

 

Point taken...Thanks, I will leave it at that. I have Nat West on the same thing, but I actually have a letter from their Cheif exec confirming the debts are unenforceable...lovely...

 

Penfold

[Penfold92]

you need to be careful becuase although overdrafts are CCA regulated, they are exempt from Part V of the act. This includes items such as s65. I'll try and do some homework if i get a spare minute.

 

Hi Sequenci,

 

I would appreciate the info/ help. Although I am still banking on the fact they will not want to go to Court. They will look very silly quoting incorrect info in their defence and with regards the Wilson case, I know what you mean, however, I thought I read within it something about payments from the credit company being returned due to the lact of a legal agreement? Maybe I am thinking of another case, but at least it is a case to try to push Woolwich with and make them insecure...I hope,

 

Penfold

[Penfold92]

Hi,

 

I have just read a post from someone in June regarding an overdraft case in the name of Coutts v Sebastyen. How can I find out what the result was and what it was all about?

 

Anyone please?

 

Penfold

[Penfold92]

Just did a Google for you - this may be what your looking for

 

http://www.shlegal.com/Asp/uploadedFiles/File/Newsletters/2005_newsletters/December_05/7691-LE%20Finance%20Lit_12_05.pdf

 

Page 5

Thanks Mr Blue Sky, but on reading it does not really help me with this one.

 

Penfold

[Penfold92]

OK,

 

So rightly or wrongly, I have written to the court manager to pass a note to the judge when he reviews this file. The note in a nutshell says that the debt was not "settled" as Barclays have used in their defence. It mentions a few other bits and then basically asks for him to strike the defence out or at least request the evidence to confirm what the defence is saying.

 

In meantime I emailed my guy at Barclays to say this is what I have sent the Judge please respond nicely before this gets to court and you look silly. Guy is not there so rang up and got another nice lady who said to email her and she woudl pass onto someone else who would deal with it.

 

I hope they just settle and we can get this over with and it can open a whole new can of worms for others on here to get stuck into...

 

Penfold

[Penfold92]

Ok Update time for those interested….

I sent various emails to the guy at Barclays Litigation after I hear the Judge was issuing AQ’s. I filled mine in and Barclays have until Monday to file theirs. I got their response today:

This is what I sent them:

Dear Mr. Barclays,

Thank you for your letter with the defence for Woolwich Bank please be aware that this is not a personal or moral issue, but a matter of legalities and responsibilities. I could very easily just wait for the Judges directions and even our date in Court, but I hope my responses to your defence may help us resolve this earlier and hence not wasting the courts time. Failing that at least I can show the Judge I am trying to resolve the matter. I am happy to continue to communicate via email if you wish, as it saves postage, paper and our planet.

 

What I would like is for your client to admit the case, and be finished with it. I will accept a Bank Transfer/ cheque, as I stated previously, for £1636.00 and that will be that, claim 7LU0XXXX finished with!

 

Please find enclosed a letter I have written to the court to be sent down to the Judge with the file, please feel free to reply or not, as you see fit, though an acknowledgement would be nice. I would also like to point out that I understand case number 7sw0XXXX has just been awarded Judgment. That case was against Monument (Barclays Bank) and whilst I appreciate each case is different it has similar issues with no regulated credit agreement in place. I have also emailed the person dealing with my complaint with the FOS that the debt was not "Settled" in 1998 as they seem to think and in fact very much being pursued in 2005.

I hope that you will see that in a nutshell the debt was transferred to an IVA in 2005 and so it was not "Settled" in 2005 as there was (according to the letters I received) an amount outstanding.

Therefore

1]Your clients have committed a summary offence by failing to supply a copy of my original agreement, possibly even leading to a conviction and a fine of up to £5000.

2]without the said copy the rest of the debt IS unenforceable

3]by misleading the Court you leave yourselves open to a charge of Contempt of Court.

4]you will incur further legal fees going to Court to face a lost cause

In the light of these revelations, I will leave it up to your own good judgment whether you wish to continue this defence or come to a mutual agreement

to avoid any embarrassment on your clients part.

Yours sincerely,

I sent another chase email much shorter on 4th September prompting them to file their AQ.

Barclays wrote back today:

Dear Penfold

RE:

Claim Number:

I acknowledge your emails received on 20, 28 August and 4 September. As you are aware, I was on annual leave and therefore unable to address your emails immediately.

Barclays’ refutes your claims as outlined in the emails and stands by its defence.

In the particulars of Claim, you admit paying the sum due and owing to Barclays. I cannot see how an IVA would have had any bearing on the matter. Either your debt to Woolwich was discharged or not, as the case may be.

We do not agree with your assertions that Barclays was in breach of any provisions of the Consumer Credit Act 1974, FSA Regulations and that any of the sanctions described should be imposed against the Bank are indeed, relevant.

We decline your settlement offer of £1736.

Please find enclosed a copy of our Allocation Questionnaire.

Yours sincerely,

Is this normal? Because obviously they either know something I don’t or they just cannot understand English!

Firstly, the POC’s (See post 1) – The only reference to payments is 7) where I only state that the account was active, in my opinion, by virtue of regular payments. Where did I admit to paying the sum due blah blah blah?

There is a huge bearing on the case based on the fact the debt was still being pursued!

Therefore their last paragraph is brilliant and I particularly like the second sentence “and stands by its defence” fantastic as the defence is wrong!

Views please,

Penfold

[Penfold92]

Penfold, even if their defence is wrong the Court will almost certainly not refund the monies you have paid. Though there will be egg on someone's face.......

To have any hope of getting a refund of the £1600 odd, you will need to settle with Barclays before the hearing. To do that you will need to prove to them that their defence is wrong. That the debt was not paid off back in 2005. You may need to send them a copy of a letter from the DCA claiming

the additional money that Barclays think was already paid.

Until they realise that the debt was not cleared back in 2005 they will be quite happy to go to Court. So you will have to explain it to them again with

proof. Once they understand their error, you can reiterate the bits about

Contempt of Court and their failure to respond to your CCA request.[bTW the

maximum fine is £2500, not £5000]. Then you have chances.

 

 

Thanks mate, I fully appreciate what you are saying, so I was thinking of sending them the fuller version (editted of course to suit) of my replies to their defnce above somewhere. But I will include all the evidence and then cross fingers. I wanted to wait until the hearing date and maybe even wait until the month just before it...bad move you think?

 

Penfold

[Penfold92]

As usual, Thanks!

 

Are these tip offs becoming more and more common then? As for ridicule...I don't mind really... Point taken, I will forward the info to the Litigation team and see where we go from there, I would like to hold out until a couple of months before though so they do not have an age to realise, or you truely feel this does not matter?

 

Thanks,

 

Penfold

[Penfold92]

Ok,

 

I emailed the guy giving him the errors etc and he does not seem bothered as this is his reply:

 

Dear Mr Penfold

Given that your claim against the Bank is progressing in the Luton County Court, I would not wish to become drawn into a long dialogue with you as to the respective merits of your claim and our Defence. However, I would wish to draw to your attention section 78 (3) of the Consumer Credit Act 1974 which states that "sub section 1 does not apply to an agreement under which no sum is, or will or may become, payable by the debtor...".

Section 78 sub section 1 refers to the creditor's obligation to provide a copy of the executed agreement (if any) together with a statement detailing the amount, if any, currently payable under the agreement by the debtor to the creditor and the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement.

We, therefore, do not accept the bank is compelled by the statutory provisions you refer to return monies you have correctly paid towards your debt.

Yours sincerely,

Can someone, anyone please tell me about this part of the CCA and how it applies in my case?

Thanks,

Penfold...

Slightly worried...

[Penfold92]

Penfold, they are still saying that the debt has been cleared. If that is the case then they do not have to comply with your CCA request. The first thing you have to do is to prove to them that part of the debt is still unpaid-and

until you do that they will keep stone walling you as they think they have the

perfect defence.

 

 

How can I do this if I keep saying I will supply the info...I give up here...almost. Should I just photocopy and post the info to them then?

 

Penfold

[Penfold92]

Well until you can convince them that they are wrong, they will continue in

their belief that they have no case to answer.

Whenever you are ready to provide the proof, do so-but I thought you wanted to delay for a while.

 

 

True so I will wait until I have a hearing date. Then maybe 2 weeks before send the info across recorded del. If nothing else if this gets to court the Judge will see I have tried to explain enough times! Also he will see they did not check the situation properly at all and so will see my point that this should not have got to court anyway. How that helps me I have no idea, maybe I can ask for court costs due to their lack of understanding?

 

Penfold

[Penfold92]

Hi,

 

I have tried to make Woolwich see sense and see that the debt was and is still there and not settled in 2005. Having a hard time of it making them understand though...

 

Got court date for end of Dec, but have to submit docs by 12th Oct under directions from Court. Should I wait till last minute to do this and so hope Woolwich do not submit anything and so go against the court directions or should I do my submissions ASAP?

 

THanks,

 

Penfold

[Penfold92]

I would be inclined to send in your submissions early so that you look efficient. Especially as you should be including proof that you are right about the debt still being outstanding way back, and so making them look incompetent.

You should also send a copy of your submissions to the bank, but leave that till the last moment to give them no chance to amend their case.

Then follow up by writing to the Woolwich pointing out the proof that the debt was not cleared and asking if it really is wise of them to appear in Court

and would not a better solution be......................to weigh you in with the

readies.

 

Thanks for the reply mate,

 

I already supplied proof in my opinion to the Woolwich. So yes I was thinking of sending both sets off say on the Tuesday 9th special delivery to Woolwich to let them know I am happy to go to Court and hand delivered to the court itself. To be honest mate I would accept less right now and call this a day. Well will post the results,

 

Penfold

[Penfold92]

Lets hope so! It is ridiculous when the figures are starring them in the face and they refuse to acknowledge them. Bless your encouragement has renewed my hope...

 

I have a similar case going through with Nat West and they are even worse!

 

Prabs

[Penfold92]

Hi guys,

Advice please…To recap Woolwich had until the 12th October to file their documents. They did not. I sent the court a letter to strike out the defence due to this lack of submission and breach of court directions. I also wrote to Barclays litigation to advise them this is what I was doing….Bless them they wrote back on 6th November to say:

Dear Penfold,

RE: you claim….

I acknowledge receipt of your evidence bundle and letter of 1 November 2007.

I enclose for your attention a copy of our application notice in which we are seeking permission of the court to extend our time for filing our evidence. We are not yet ready to prepare our witness statement as I have been waiting for data relating to your Woolwich account from archive. I am told this should be with me shortly.

I wish to decline your settlement offer.

Yours….

So they were supposed to file by 12th October and they now want a further time…

Here is the written bit of their application:

I(we) wish to rely on the following evidence in this application:

This case has been allocated to the small claims track and is due to be heard on 20 Dec 2007.

By order of 21 September 2007 the parties were due to file and serve their evidence upon which they intend to rely at the hearing.

It is the Defendant’s intention to make submissions to the effect that the Claimant’s debt to the Defendant was discharges at the time of his request under section 78 Consumer Credit Act 1974 and consequently there was no requirement on the part of the Defendant to comply in order to determine whether or not there was a regulated credit agreement enforceable retrospectively.

The Defendant is not yet in a position to submit its evidence as we are still endeavouring to retrieve data from storage to substantial the above.

Since the hearing is still six weeks away, the Defendant does not believe the Claimant will be prejudiced in anyway by an extension of time.

I respectfully request an extension of 14 days, or in the alternative by 23 November 2007, for the filing and serving of the Defendant’s evidence.

I also request that this application be dealt with without a hearing under the court’s powers of case management and in order to achieve the overriding objective of the Court Rules and to save court time and costs for both parties.

The claimant will be notified of this application.

Can anyone please let me know what I can write to the Court to disallow this blatant time wasting? Why do they need an extra 2 months! Remember date was 12th October and I managed it. Why have they come up with this only when I wrote to them to advise I was going to judgement?

Also are they now saying that they wrote the debt off when I asked for the Agreement? If so then that was back in March 2007 and so would not be hidden away in “archives”…

Help guys with a court objection and reply?

Thanks,

Penfold

[Penfold92]

How about something like:

 

Dear Sir,

RE: Claim Number: XXXXXX – Penfold V Woolwich

I, the Claimant and litigant in nature, would like to request the court strike out the application by the Defence to extend the time in which to file their evidence. As per the orders by Judge Gill on 21 September 2007 both parties were due to file and serve their evidence. I did this and the Defence have made no effort to do so nor to correspond with me or the Court regarding this filing until I wrote to inform them I was requesting judgment for breach of the courts orders.

Their application is farcical as surely they do not need two months to find information on an account whether it is in “archive” or not?

I trust His Honour will not entertain this blatant disregard of Court Directions and strike out the application.

Yours faithfully

Penfold