Chica vs Abbey ** WON **

[chica]

Abbey have submitted a defence.

Basically, it reads:

1. Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

2. It is admitted that the Claimant has a current bank account with the Defendant, account number to be particularised("Account")

3. At all times the Account has been subject to the applicable terms and conditions("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he opened the Account. The Defendant will refer at trail to the full Conditions but for the purposes of this Defence will refer to the following extracts:

(1) "You can apply for an overdraft on your Account. If we give you an overdraft we will tell you your limit and the interest rate applicable.

(2) "An unauthorised overdraft occurs if without our agreement you overdraw your Account or exceed the limit of an overdraft which we have agreed."

(3) "If you have an unauthorised overdraft, you will be charged fees as set out in our Tariff of Charges or specified to you and these may include fees for transactions we are unable to process due to lack of available funds in your Account."

4. Throughout the period that he has had the Account, the Claimant recieved a number of copies of the Conditions and of the said Tariff of Charges as they were amended and updated(though there has been no material amendment to the Conditions extracted in paragraphs 3(1), (2) and (3) above).

5. Any overdraft facility on the Account was (and is) subject to the Conditions.

6. The Claimant has overdrawn or exceeded authorised overdraft limits on the Account on a number of seperate occasions, full details of which will be provided on disclosure. Therfore by virtue of the Conditions referred to in paragraph 3 above such overdrawing was unauthorised and in breach of contract and the Claimant became liable to pay fees to the Defendant in accordance with its Tariff of Charges applicable at the relevant time. In accordance with the Conditions, such fees were debited to the Account.

7. In view of the facts and matters referred to in paragraphs 3,4,5 and 6 above, the Defendant denies that the amount of £2000.25 or any other amount, was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied.

8. The Claimant's contention that the said fees are unenforceable and/or are "penalty charges" is denied. The fees reflect and are proportinate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damages suffered by the Defendant.

9. Further or in the alternative, even if the said fees are not proportinate to the Defendant's administrative expenses incurred(which is denied), the Claimant remains liable to pay such fees as may be found to be proportionate and the Claimant is not entitled to claim repayment of the full amount of each charges made to the Account.

10. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

 

The Defendant believes that the facts stated in this defense are true.

I am duly authorised by the Defendant to su=ign this statement.

Full name Inga Kirkham

Positon Held: Legal Officer

Date 25 October 2006.

 

 

I also have atransference to my local court and an allocation questionaire to fill in!!!!!!!!!!1

HELP!!!

[lesser1010]

standard defence,don't worry be patient a little longer and you will get your money.

[chica]

So how do I go about filling in the Allocation Questionaire? Thanks in advance Lesser1010

[chica]

Anybody got any links to an Allocation Questionaire?

[Michael Browne]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[chica]

Went to the courts to day to hand in my allocation questionnaire N149 and was told it was the wrong form. Apparetnly I should be filling in N150. Have I cocked up somewhere? Worried now.

[philread1]

Chica, who sent you the AQ, N149?

 

Phil:)

[chica]

It was sent in the post with my transference notice from the courts itself. The lady said that because my claim is for over £1500 I need to fill out N150.

[philread1]

Hello Chica

 

My claims for over £7000 and they sent me the N149! The N149 should be the right AQ for you!

 

Maybe I'm wrong?

Phil:)

[chica]

I'm going to fill in both. Unless anyone else has any ideas? Thanks for your help philread1.

[chica]

I think the lady on Monday was having a bad day, because I took the N149 in again today and it was accepted with no problems.

Here goes....wonder how long for a hearing date or do you think they will settle before then? Am going away just after christmas....hope I get it before then!!!

[chica]

Recieved a general form of judgement or order today from the Local Court.

It says:

Upon the Courts own motion. The Court has made this order of its own initiative withoput a hearing. If you object to the order, you must make an application to hace it set aside, varied or stayed within 7 days of recieving it.

It is ordered that:

1) The claim is allocated to the Small Claims Track.

2) Both parties shall, by 4pm on 22 December 2006, file at court and serve on each other the witness statements of themselves and of all witnesses (other than expert witnesses) on whom they intend to rely.

3) No party shall rely on or adduce the evidence of any witness whose statement has not been served in accordance with this Order without further permission from the court.

4) The matter be referred to District Judge... for final case amnagement directions upon filing of the statements ordered to be filed in paragraph 2 above.

5) Because this Order has been made by the Court without considering reprensentation from the parties, the parties have the right to applt to have the order set aside, varied otr stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropiate fee) to arrive within seven days of service of this order.

 

Dated 24th November 2006.

 

 

 

 

1)What does this mean in english!!!???

2) I take it I'm not getting my money back before xmas??

[Guest willowb]

Hiya, I'd interpret it like this..... but I could be wrong!

 

1) The claim is allocated to the Small Claims Track. Fine!

2) Both parties shall, by 4pm on 22 December 2006, file at court and serve on each other the witness statements of themselves and of all witnesses (other than expert witnesses) on whom they intend to rely.Remember, you ticked NO to witnesses on your AQ!...so, fine again!

3) No party shall rely on or adduce the evidence of any witness whose statement has not been served in accordance with this Order without further permission from the court. You won't be serving any because you don't have any.

4) The matter be referred to District Judge... for final case amnagement directions upon filing of the statements ordered to be filed in paragraph 2 above. You won't be sending any staements in

5) Because this Order has been made by the Court without considering reprensentation from the parties, the parties have the right to applt to have the order set aside, varied otr stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropiate fee) to arrive within seven days of service of this order.

You don't need a set aside.

 

 

Phone the Court on monday and get some advice but my interpretation would be that you need do nothing. I'm really not an expert though so do phone them up or wait for another response.

 

Wxx

[chica]

Thanks WillowB.....Does anyone else have advice??

[chica]

Excellent!! Thankyou ever so much!! I should donate all my money when I get it back because without this site I wouldn't be getting anything!!

I'm always telling people about this site and I hope that they manage to get the same help I have done!!!

 

Is there any chance that this will be all settled before the 22nd of December?

I've been reading some other threads and most people get 50% offers after filing the AQ...I've not recieved any!!!

I really, really don't want to go to court!!!

[chica]

Will the programme on BBC 2 the other night, make anything difference to the witness statement above? I haven't done it yet as I was waiting to see if Abbey settled out of court, but so far it doesn't look that way!!!

[chica]

Has the 'The Money Programme' on BBC 2 , made a difference to anybodies claim? I'm going to sort out the witness statement tonight.

[chica]

Case No: xxx

In the Bury County Court

 

[xxx]

CLAIMANT

-AND-

[Abbey National PLC]

DEFENDANT

First WITNESS STATEMENT

OF xxxx

 

I, xxxof xxxxwill say as follows:-

 

1. I am the Claimant in this case.

2. I make this Witness Statement in support of claim against the defendant.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. On the 26 June 2006 I wrote to the defendant requesting a refund of unlawful charges levied against my account. A reply was received on the 30 June 2006 stating that a member of the complaints team would be looking into my complaint and I would receive a reply to my complaint within 4 weeks time.

5. I wrote to the defendant on 12 July 2006 with my intention to file a claim in the courts.

6. A letter was received on the 26 July 2006 stating that Abbey were sorry that they had given me cause to complain but that the charges were set out in the Terms and Conditions of the Account which I signed when I opened my account in November 2004. They also offered to reverse pending charges as a gesture of goodwill of £220 which I accepted in a letter dated 12 August 2006 as a partial payment of my claim.

7. On the 18th August 2006, the aforementioned £220 charges were taking from my bank account and as such a series of telephone calls ensued, which resulted in the charges being refunded back into my account.

8. I received another letter from the Abbey dated 23 August 2006, reiterating the fact that Abbey were sorry I felt I had cause to complain about their charges on my Current Account. I was reminded that a full investigation had been carried out and that no further refunds would be offered.

9. On the 25 September 2006 I filed with Bury County Court a claim against the defendant for the return of excessive penalty charges as outlined in my particulars of claim.

 

Statement of Truth

I believe the facts stated within this Witness Statement to be true and exhibit Exhibits comprising of 01 page.

 

 

Dated this day of 2006

 

Signed

20 December 2006

Can someone check this over please!!! I've been really ill and this is the first chance I've had to do this witness statement. It needs to be filed on Friday!!!AAARRGHHH

 

 

[chica]

Revised Witness Statement

 

 

I, xxxxof xxxxxwill say as follows:-

 

1. I am the Claimant in this case.

2. I make this Witness Statement in support of claim against the defendant.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. I have a contract with the defendant bank dated Nov 2004 and on the 26 June 2006 I wrote to the defendant requesting a refund of unlawful charges levied against my account. I am claiming the return of money taken by the defendant in the way of charges over the last 2 years plus the interest they have levied on those charges. The bank's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. A reply was received on the 30 June 2006 stating that a member of the complaints team would be looking into my complaint and I would receive a reply to my complaint within 4 weeks time.

5. I wrote to the defendant on 12 July 2006 with my intention to file a claim in the courts due to the fact that the bank’s charges are a disproportionate penalty.

6. A letter was received on the 26 July 2006 stating that Abbey were sorry that they had given me cause to complain but that the charges were set out in the Terms and Conditions of the Account which I signed when I opened my account in November 2004. They also offered to reverse pending charges as a gesture of goodwill of £220 which I accepted in a letter dated 12 August 2006 as a partial payment of my claim.

7. On the 18th August 2006, the aforementioned £220 charges were taken from my bank account and as such a series of telephone calls ensued, which resulted in the charges being refunded back into my account.

8. I received another letter from the Abbey dated 23 August 2006, reiterating the fact that Abbey were sorry I felt I had cause to complain about their charges on my Current Account. I was reminded that a full investigation had been carried out and that no further refunds would be offered.

9. On the 25 September 2006 I filed with Bury County Court a claim against the defendant for the return of excessive penalty charges as outlined in my particulars of claim.

10. My claim is that the bank's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

11. I have repeatedly asked the bank to justify their charges but they have declined to do so. As reported on a recent BBC2 ‘The Money Programme’, three experts have researched for a period of time and their conclusion is that the maximum cost incurred to process a ‘bounced cheque’ is £4.50 and a ‘direct debit or unauthorised overdraft’ is £2.50. Therefore being charged £20-£35 for the same ‘service’ is unlawful.

12. I am claiming interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 21 Mar 2005 to 15 Sept 2006 of £1892.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.42p

 

Statement of Truth

I believe the facts stated within this Witness Statement to be true and exhibit Exhibits comprising of 02 pages.

 

[chica]

Any ideas??

Ta folks

[chica]

Right I'm going to print that later today and drop it off later at the courts!!! Do Abbey need their copy tomorrow aswell or can I send that 1st class???

[chica]

I'm printing this off soon and I just wanted to make sure that everyone thought this was okay to send as a witness statement??

[Michael Browne]

12.Accordingly the Claimant claims:

i. The return of the amounts debited in respect of charges in the sum of £xxxxxxxxx (which includes overdraft interest charged as set out on the attached list of charges.

ii. Court costs (court fee of £XXX.00, Allocation Questionnaire fee of £100.00).

iii. interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 21 Mar 2005 to 15 Sept 2006 of £1892.00 as set out on the attached list of charge,and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.42p

 

Is £1892 the charges? This figure should be the s69 8% interest

[chica]

Yes £1892 is the charges. Have I dropped a clanger??

[Michael Browne]

12.Accordingly the Claimant claims:

i. The return of the amounts debited in respect of charges in the sum of £1892.00 as set out on the attached list of charges.

ii. Court costs (court fee of £120.00, Allocation Questionnaire fee of £100.00).

iii. interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 21 Mar 2005 to 15 Sept 2006 of £XXX (8% interest figure)as set out on the attached list of charge,and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.42p