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

[alanfromderby]

This is the legislation that backs up the Inland Revenue requirements:

 

 

okay...now found the relevant legislation to back up the Inland Revenue information. It is schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

I would direct attention to CCA sections 140A(1)© and 140A(4) - however, I am still not 1000% that this is retrospective, so I would strongly advise that you seek further advice on this.

[Edz11]

one alteration;

"just say a debt does not NOW exist"

[Penfold92]

This is just maybe great news...

 

I have just rung Equidebt, who have confirmed that on their systems the debt is still outstanding...I have asked the lady to send me a letter confirming this fact...she said she would...

 

Let's hope so eh?

 

Penfold

[alanfromderby]

Nice.

[Penfold92]

I have just rung them up again and asked them to include who the dividend should be paid too....I thought that saying Woolwich would be excellent. Does anyone thing this is naughty? Will I be pulled up infront of the judge to explain why I asked for this letter?

 

Penfold

[Edz11]

It is you proving your case - pure and simple...

[Penfold92]

Hi Edz,

 

Exactly my point, Barclays litigation are trying it on and saying the debt does not exists so no proof required. If I show the judge and them it does, well I hope that changes the complexion in my favour. Now crossing fingers the girl does the letter...

 

Can anyone think of anything else I could try? How about a letter from Woolwich...after all we all know they do not talk to each other...

 

Penfold

[Penfold92]

Ok, further to the update yesterday I have called around Woolwich to try to get something similar from them...

Now this is interesting as they have nothing the two account numbers the Defence have quoted do not bring anything up on their systems….So does that mean the Defence have lied to the Court about the account numbers? How do they know it was a bank account and not a credit card for example? They have no records at all…

The lady said that if a bankruptcy or IVA occurs they close the account down as they do not normally get anything back or they sell the debt on to Maw Recovery or the like.

So effectively the defence is telling me the truth that the account is closed and I owe nothing, but why did no one tell me this and explain at the beginning? The closed file must surely still be somewhere…having said that maybe that is what he was hoping for and just could not find it…

So where to from now….I will still get the letter from Equidebt saying there is an outstanding balance and hopefully that should be enough…This lady said that if she could find anything out she would “happily tell me the amount to pay and who to….” Bless the greed of the Banks…Let’s hope she finds the file…

Penfold

[lookinforinfo]

[

The lady said that if a bankruptcy or IVA occurs they close the account down as they do not normally get anything back or they sell the debt on to Maw Recovery or the like.

So effectively the defence is telling me the truth that the account is closed and I owe nothing, but why did no one tell me this and explain at the beginning? The closed file must surely still be somewhere…having said that maybe that is what he was hoping for and just could not find it…

 

 

Calm down Penfold. It is normal to close the account in those circumstances.

But while the account is closed, the debt still stands. It is transferred to

another account along with all the other closed accounts where the bank feels there is little chance of recovering the money.

 

Your case is as strong as ever.

[alanfromderby]

I think it also depends on the access permissions of the department you spoke to. Very often companies restrict access to historical records to keep a lid on potential data protection issues.

 

This came to light when I had a dispute with Sky - their call centre screen showed that I owed them £10, whilst the main customer services centre were able to confirm that it had, in fact, been paid two weeks before.

 

Unfortunately these people often don't know that they have restricted access.

[Penfold92]

So in a nutshell should I send the letter above now to the Court, or wait to see what comes back from Equidebt? Woolwich lady came back and said on further investigation the account is involved with litigation and so she cannot now comment or ask me for the money...

 

So my only hope is to get the Equidebt letter and add it to the letter above?

 

Views please,

 

Penfold

[lookinforinfo]

It is a shame you could not get Woolwich lady to put her comments in writing.

How could she ask you for money if the account was nil?

 

Have you sent Woolwich an sar or asked them to supply you with all relevant details pertaining to your Court case under the CPR?

[Penfold92]

It is a shame you could not get Woolwich lady to put her comments in writing.

How could she ask you for money if the account was nil?

 

I know if only, but I thought they may eventually twig given the file is so hard to find...

 

Have you sent Woolwich an S.A.R - (Subject Access Request) or asked them to supply you with all relevant details pertaining to your Court case under the CPR?

 

No, but in the letter to the Court I want to send I think I am asking for the court to order them to produce what they do know as they have produced nothing. The time request did mention evidence from archives, but they have not done this so perhalps that is my best route combined with teh letter from Equidebt if I get it. I do have the one from March this year as a back up anyway.

 

Penfold

[Penfold92]

How about this for the letter:

 

Dear Sir,

RE: Claim Number: 7LUXXXXX – Penfold V Woolwich

 

I, the Claimant and litigant in nature, refer to the claim as detailed above and specifically the order made by district judge Gill dated 21/09/2007. Please can you pass this down for the Judges Orders/ Directions.

 

I wish to inform the court that the defendant wrote informing me of their intent to apply for extra time to file their evidence. As I stated in a previous letter to them I could have applied pursuant to Rule 3.4(2)© of the Civil Procedure Rules to strike the defence out for not serving any documents to support its defence and wasting the courts time by the abuse of the process, however, I did not at that time. I was happy for the Defendant’s council to get their evidence as that is all I asked for originally. I do, however, fail to see why it has taken so long for them to do this and now after another missed time Order for submitting their evidence I had had enough. I applied for the striking out of their defence. They have now produced a three page witness statement contradicting their earlier defence.

 

Your Honour, point 2 of the original defence gives a different account number to the witness statement (point 4), which is correct as I certainly did not have two accounts that I am aware of with Woolwich Bank? What proof/ evidence or information have they supplied to show what they have stated? I have tried to ring Woolwich/ Barclays several times only to be told "these account numbers do not exist”. Please can the Court ask the Defence to explain this? If they have account numbers then they surely have information regarding them, if not where is the Defence getting the account numbers from then and their statements?

 

In the defence (point 8) the Defendant states that the original account was closed, but as Your Honour surely knows money has to be accounted for and so if that one was closed then surely another one had to be opened to recieve payments? That being the case it would have been very naïve for the Bank not to link data regarding this supposed debt with that new account. I would like to clarify that Equidebt Limited were acting on behalf of the Woolwich and not as a separate entity and as such the payments made to them were being passed to the Woolwich (see point 8 of the original Defence “payments received from the Claimant were in discharge of the debt balance”). The last payment to the account would have been 2005 and so using the Defence’s own statements six years from then would be 2011. In fact Point 8 of the Witness statement also ends “their respective case files being closed in 2005 as a consequence of the IVA”. Your Honour would note that the “their” refers to Equidebt Limited and the Woolwich. I am also curious to note that comment as an IVA does yield dividends and so why did both companies assume there would be no further payments? My Insolvency Practitioners have confirmed to me that Woolwich made no claim for a dividend when asked. This only strenghtens my claim as specifically told them not to claim a dividend unless they had an enforceable agreement. The fact they did not claim admits that very point exactly. I would also like to point out the following (His Honour may wish to check I have got my facts right) prior to the hearing:

 

• According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.
  
• This interpretation fits in with Inland Revenue rules in schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states: "The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)." As my understanding of this that therefore states that prime documents need to be retained for a period of six years – After the relevant accounting period. That would mean some files need to be retained for up to seven years.
  
• Section 6(3)(a) of the 2003 Money Laundering regulations would seem to suggest that full records need to be kept for five years after "the relationship ends".

Therefore I hope His Honour will see that the Bank should have maintained proper records and supplied them on official request in a timely manner as the relationship had clearly not ended. I am sure they are not the only Banks to operate this way and perhaps after this action I will also pass this information on to the Inland Revenue to see their views on this sort of cover up accounting. Their actions and letters only infuriated me and forced me to take legal action to resolve my queries.

 

Point 9 of the Defence states that Woolwich is “not seeking to enforce the agreement”, but that is because the agreement was entered into an IVA and as the Court knows the debtor cannot be pursued after that point. I can show that prior to that I was indeed actively pursued in particular I refer to pages 71-73 of my bundle showing letters from Equidebt attempting to increase my repayments for the last three years prior to the IVA. So had I not entered into an IVA then I would be still being actively pursued.

 

Point 9 of the original defence stated that “…the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038.00 by April 2005”. This has now been altered in the witness statement point 8 where the Defence acknowledges "The balance then due was £740.05p". Yet in the same breath says that Section 78 of the Consumer Credit Act 1974 does not apply as no monies are due, however, I ask the Court to explain how £740.05 due in 2005 (according to the letters I received and what was entered into my IVA) has just vanished to avoid liability to produce the requested documents or proof? Yet this is clearly not the case as both Equidebt and Heatons Solicitors have written to me with the outstanding debt of £740.05 still showing. I will provide these at the hearing should they be required.

 

The Defence have not provided any information (yet alone substantial) from their “archives” and I ask the Court to put them to strict proof as to what they recovered from that department given all the time they have taken. Alternatively to simply continue with my application to strike the defence out for it continued breaches of the CPR's and wasting the Courts time.

 

Yours faithfully

 

 

Penfold

[Penfold92]

It appears that Barclays may monitor this site...I just rang Equidebt to check if the letter was coming out to me and now they are saying the account was closed in 2005 with a balance of £740.05 and that no further correspondance will be sent by them to me and I should talk directly to Barclays litigation...Bless them...Oh well I will send the above letter anyway then, unless anyone can think of anythign else to add?

 

Cheers for all your help,

 

Penfold

[Penfold92]

Hi guys,

Here is what I got back from the court today after my application to strike out the defence:

Upon reading the Claimant’s application dated 26 November 2006

IT IS ORDERED THAT

• The Defendant having failed to file and serve any evidence by 23rd November 2007 (despite requesting and obtaining an extension to that date) shall be debarred from adducing its own evidence at the trial without leave.
  
• This order was made without a hearing. Any party affected by it may apply within 7 days of service for it to be set aside, varied or stayed.

Dated 04 December 2007

So firstly I assume this means we are still going to trial, but they cannot submit any evidence? Mind you, you have all seen they have not supplied any evidence anyway so not really what I want, or does anyone think this is still promising? The court will get their witness statement in the next few days, but I guess this does not effect this?

Thanks,

Penfold

[alanfromderby]

So, let me get this right, you applied for an application to strike out their defence, and the judge has allowed the defence to stand but has barred them from bringing forward evidence.

 

That seems rather bizarre to me.

[Penfold92]

Exactly it Alan....Maybe because it is so close to the hearing he feels that if he strikes out and they apply for set aside I lose out on time?

 

Penfold

[Edz11]

I think the order is more subtle than that. They aren't allowed to bring any little surprises and what they do bring forward as a defence wil be critically reviewed. (Don't forget that Penfold did point out the inconsistencies in what they have already provided).

 

I think they'll now be in the right frame of mind to settle. A part 28 offer might be apropriate.

[lookinforinfo]

It's not quite as simple as Alan says, is it?

The Judge has given them 7 days to appeal his decision in which case if they

present their evidence within that time framework, the Judge may relent. In

other words, he is forcing them to put up now or be shut out.

 

Also, when the Judge adds the words "without leave", does that mean that they may be allowed to present their evidence on the day if he changes his

mind after hearing sufficiently good reason for their delay in furnishing

their evidence?

[Penfold92]

Well as we all know they did supply a witness statement, but no evidence anyway. So bear in mind I have already responded to this and the fact that they supplied their witness statement late. I think I have covered all basesnow, only need to send the bank the letter I sent the court (if they have not already read it here...LOL)

 

I will wait a few more days before supplying that. It, as you know, discusses the other laws and Acts that have been breached with regards the documentation of everything and since they cannot supply any further info now (nothing really in the witness statement) I think I have GOOD grounds for an UNFAIR RELATIONSHIP case... I know many will not agree or see it that way, but I really do think I can argue it...

 

Penfold

[alanfromderby]

I wouldn't read too much into the second part, I believe that this has to be included on any order where it is made without a hearing.

[Penfold92]

I wouldn't read too much into the second part, I believe that this has to be included on any order where it is made without a hearing.

 

 

Ok so please clarify for me here, how does it help to ask the Defendant to prove things if they do not/ are not allowed to? Am I being completely silly here and basically this order IS in my favour?

 

Is the Judge basically saying they have to defend on the day without being able to supply any evidence and so they will not be able to counter argue my points and so will / should lose?

 

Penfold

[Edz11]

The crucial bit is "without leave". So they can, provided the Judge will accept it. If they produce two inches of stuff at the Court the Judge will say "no". They have effectively one shot at providing everything they want to rely on and the Judge has to say "yes" - with no guarantee that he will.

 

So if the order is not appealed against by the Bank you should apply for a default Judgment. Goose cooked...

[alanfromderby]

I would certainly agree with that view.