Stu vs HBOS (£ + default)

[jonni2bad]

I will in less than 2 weeks!

[kevcam]

Hi,

 

Thanks for your reply Jonni2bad. Can you give me more details on your case.

 

Which bank are you going to court with?

 

Do you have a thread I could read through?

 

Thanks

[jonni2bad]

http://www.consumeractiongroup.co.uk/forum/halifax-bank/3962-jonni2bad-halifax-off-court.html

 

It's a bit of a read though.......

[kevcam]

Only one day to go now!

 

Case is being held tomorrow (6th December) at Canterbury Law Court.

[exhale]

Best of British Kev. Make sure you get a good night's sleep tonight

 

/al

[kevcam]

Thanks Exhale.

 

Unlikely to sleep tonight though - my daughters been ill and had us up all night for the last couple of nights - and I've a lot of preparing to do.

[bathgatebuyer]

Go get 'em!!! Best of luck for tomorrow and I hope you have every success seeking retribution from the Hellifax.

[Neil Birch]

good luck for tomorrow . let us all know how you got on

neil

[jonni2bad]

Expect the unexpected, and all that!

 

Take your time, don't feel rushed into replying if you refer to notes.

 

Ask anyone to repeat anything you don't quite hear, or don't understand - and makes notes where possible.

 

Best of luck

[kevcam]

Thanks John for your advice, it is greatly appreciated.

 

I know you speak from experience.

 

I will be taking plenty of notes and will report back this afternoon.

[kevcam]

I think the hearing went very well this afternoon and I think the result was the best I could have hoped for.

 

The Judge was extremely nice, as was the solicitor representing HBOS Plc, and it was all done in a very relaxed manner in a small room with a table at which we all sat, with the judge at the top. I hope this will make others feel less nervous about actually going to court as it really wasn't that bad.

 

The Judge pointed out that he would not be referring to my court bundle in the directions hearing but did comment that he thought that the case was very well presented.

 

Instead the 30 minute hearing (which lasted an hour) was to discuss whether or not the case could continue.

 

There was some problems with my claim form in that I had specified an amount on the first page (I had originally left it blank but following instructions from court staff I entered an amount). This was wrong as the claim was apparantly dealt with as a Default Action which is designed for cases just involving a specific sum of money and no more.

 

HBOS Plc were arguing that because they had refunded the amount of charges within the claim that the rest of the case should be struck out and if I wanted to pursue damages and default removal etc then I should start a seperate action.

 

The Judge initially agreed that this would be the best option, but thanks to jonni2bad thread I was able to put that a similar case against the Defendant proceeded to court on the Default Notice issue however the court ruled that the legalities of bank charges were not to be discussed, leaving him unable to argue his case.

 

The Judge therefore agreed that I be allowed to proceed with the case.

 

The Judge was very aware of the cases being raised in court and thought that it was very interesting. He was aware of a number of cases being referred to the Mercantile Court for a test case and was interested to hear that they were all being settled before appearing in court.

 

After consideration the Judge has made the following order:

 

Upon hearing first Claimant and Solicitor for the Defendant . . . because of disparaties within the claim form the action was treated as a default action whereas the Claimant was seeking further remedies including the Declaration which should have caused the court to list the matter for a directions hearing and upon the Claimants indications that at present he does not regard the action as concluded it is ordered that:

1. The Claimant should by 4pm on December 22nd notify the Court and the Defendant whether they intend to proceed with their claim and shall at the same time issue any application for the ammendment of the Particulars of Claim, attaching thereto a copy of the proposed ammended statement of case.

2. The matter be listed for further directions and to consider the Claimants application on first open date after 19/1/07 (1 hour hearing).

Such hearing to be vacated in the event that the claim notifies the court and the parties that they do not intend to proceed.

Costs of today be reserved to the adjourned hearing or otherwise agreed between the parties.

 

I think what has been discussed today can be important to those also wanting the removal of a default. It appears that by stating an amount on the first page of the N1 claim form could jeopordise any additional requests in your Particulars of Claim, especially is cases where the bank refund the charges.

[jonni2bad]

This seems like very good news - well done for sticking to your guns too.

 

You most certainly seem to have been heard by a more open minded Judge than in my case, and this too is particularly encouraging.

 

When you refer to the "amount" on the front of your N1, what do you mean precisely? The wording in the summary, or the amount entered into the sections at the bottom?

 

Did the Judge make any reference to the provision for removing the default? i.e. did he agree that he had the power to do so?

 

I think that the Halifax will have been knocked back by this today are were probably expecting to have the case settled in their favour.

 

Very well done indeed.

[kevcam]

Thanks John,

 

When I refer to the amount I meant the boxes down the bottom where you fill in a sum being claimed.

 

The Judge did make reference to removal of the default notice. He first said that this should perhaps be taken up with the Information Commisionner, but he looked up DPA and confirmed the court could order its removal.

 

Halifax (HBOS Plc) were really really wanting this case to be struck out and for me to be ordered to start a new claim. They requested this many times are were quite taken aback that I be allowed to alter my Particulars of Claim to fix any errors.

[Neil Birch]

Did HBOS actually send a solicitor or did they use a local agent ?

[Robertxc]

Well done.

They requested this many times are were quite taken aback that I be allowed to alter my Particulars of Claim to fix any errors.

This is exactly why big companies don't like small claims. Because of the 'informal' nature of it, the judge has quite wide discretion in how he proceeds - something he wouldn't necessarily excercise if it was a case between two big companies.

[kevcam]

HBOS sent a local representative claiming it was "too far to travel".

 

They also failed to submit any evidence to the bank charges or default notice part of my claim and only submitted a witness statement stating that the bank charges were "no longer in issue" and for the case to be struck out.

[kevcam]

Hi,

 

Has Halifax submitted a defence to anyone. I don't mean just saying that they intend to defend but actually outlined what their defence is.

 

This is URGENT as I am in court against them at 12 Noon today.

 

Thanks

[kevcam]

Hi,

 

Has Halifax submitted a defence to anyone. I don't mean just saying that they intend to defend but actually outlined what their defence is.

 

This is URGENT as I am in court against them at 12 Noon today.

 

As far as I can see from the posts that they don't seem to have ever submitted a defence. Am I wrong?

 

Thanks

[jonni2bad]

Hi, didn't see your post until now, so I presume you've been to court...?

 

Yes, they have submitted a defence and then followed this up with a witness statement in my case. Most claims are money only so would not have a deal of relevance to your case.

 

If this is something you need I can get it to you, but it seems a little late from reading the above...

[kevcam]

Hi Jonni,

 

Thanks for the reply. I would be interested in hearing whether they submitted a defence to you for the actual charges, ie that they were not penalties, or that they were proportionate.

 

In the past all I have received from them is a Witness Statement that they had refunded charges and this was no longer in dispute.

 

They have been very reluctant to tell me the reason why their charges are not unlawful.

[jonni2bad]

That does seem rather odd - no defence submitted.... I will have to refer this to a slightly more legal bod if that is the case.

 

However, here's mine and you are right, no mention of either scenario!!!

 

*******************************

 

The Defendant is a bank. The Claimant has a joint current account with the Defendant, having roll number xxxxxxxx ("the Current Accounts").

 

2. The Claimant is claiming £XXXX in relation of bank charges, interest of £XXX and court costs of £150. The Claimant also requests the removal of the default notice on the Claimant's credit record.

 

3. The Claimant has provided particulars stating that £XXXX of his claim relates to bank charges incurred on the joint Current Account. These charges were debited to the Current Account in accordance with the terms and conditions of the Current Account ("the Account Conditions"), which the Claimant agreed to accept and by which he is bound. Under the Account Conditions, the Defendant is entitled to apply charges to the Current Account, inter alia and so far as is relevant to this claim, for:

 

a) each calendar month were debited balance on the Current Account exceeds any authorised overdraft limit;

 

b) refusing to honour payment instructions issued by the Claimant where there are insufficient funds available for withdrawal from the Current Account (after taking into consideration any authorised overdraft limit);

 

and

 

c) honouring payment instructions issued by the Claimant where the overdraft limit has already been exceeded, or is exceeded as a result of honouring the payment instruction.

 

4. Notwithstanding the foregoing, the Defendant has, without admission of liability, refunded £XXXX to the joint Current Account. This sum represents all the bank charges that the Claimant has incurred together with the interest and court fee claimed.

 

5. The Claimant also requests the removal of the Default Notice on his credit file. The Default Notice is a record on credit file that states that the default has occurred. In the Claimant's case, the Default Notice was entered on 12th November 2003 due to not making the correct payments on time, exceeding the authorised overdraft limit and a change of circumstances. In July 2003 the Claimant was paying £XX per month to reduce the exceeded overdraft. The Claimant broke the arrangement in October 2003 and the Defendant subsequently received a financial analysis from the Citizen's Advice Bureau which resulted in a reduced payment arrangement of £XX per month towards the outstanding arrears on the account.

 

6. The Defendant provides new account holders with information regarding credit referencing when an account is opened. The information was previously contained in a leaflet "Uses of Data" and is now contained in "Personal information and Your Identity", which states:

 

"after you open a credit-based product, we will provide the agency with regular information about how you use it, including any changes to your personal information such as previous or subsequent names. Other lenders may use this information to make decisions on future applications for credit".

 

7. The Default Notice was not registered due to the claimant purely incurring charges. A credit record is supposed to be an accurate reflection of the status of the account at the time and as the default was not due to the Claimant purely incurring charges on the account, the Defendant contends that the notice should not be removed.

 

8. The Defendant has acted in accordance with the Account Conditions, and on the basis of the matters pleaded above the Defendant denies that the Default Notice should be removed from the Claimant's credit record. The Claimant was aware that the Defendant passed information to the credit reference agency and the Default Notice reflected the status of the claimant's account at the time.

[kevcam]

The defendant has now been ordered to submit a defence within 28 days so I will let you know what this is.

 

But I would also like to offer a tip to those who are seeking other remedies in their claim i.e. they are seeking removal of a Default Notice.

 

It is important for people to know that at present that the bank will attempt to settle charge part of claim so that charges will not be discussed in court. They were nearly successful in doing this in my case and I know the same happened to Jonni2bad.

 

The court must know that you have not agreed or accepted this in full settlement and without admission of liability and that you are seeking further remedies. You must also be able to accept that the Defendant has the right to ask for their settlement money back (as you have not accepted it in full settlement).