Nationwide withdrawing overdraft

[MilkTrayMan]

In the news a couple of days ago did the High Court not rule that customers were unable to contest bank charges etc or did I get that wrong?

U got that TOTALLY wrong!!!

The UK Supreme Court passed down a ruling that the OFT could not investigate whether or not banks unlawful penalty charges were fair or unfair.

There is nothing to stop a Claimant successfully arguing their own case in court + winning.

Please read the many Threads about the subject in other Forums on the website.

 

 

 

If that is the case then you haven't got a leg to stand on.

Most peeps have 2

...1 they keep as a spare 1.

[tartanblood]

So if there is no one to investigate the bank charges to ascertain if they are lawful or unlawful, it is up to the judge to decide?

[MilkTrayMan]

U will find out the answer to that question by reading OTHER Threads tartanblood + not by hi-jacking this one.

[tartanblood]

ooooohhhhhh keep your hair on MilkTray (probably don't resemble him though just a sad git on this forum)

[sytra]

I'm not aware that Nationwide share Flexaccount standings with CRA's tbh.

 

They certainly didn't add any info about MY Flexaccount on any Credit Report I've seen.

...Although I know that they DO process Personal Loan details.

 

 

 

Unfortunatley Milky i think this may be wrong, the wife has 2 flexaccounts with NW and both have defaults registered at the CRA's

 

Sytra

[Its WAR]

So back to the question. Whilst we wait for further developments to regroup, we might as well look at the issue of default notices and spend some time tidying up the damage the banks are causing to our credit files. Clearly the charges are deemed as part of the price we pay for the total banking package. Therefore we are paying for the service. If we are paying for the service as agreed in the contrac, why are we also getting defaults? Surely we shoiuld only be getting the high fees to pay?

 

Anyway, what can we do about the defaults, especially in the light of a faulty default notice? Assuming that if we bring the fault to the attention of the bank, all they have to do is issue another proper one?

[Rhia]

I have a Flexaccount with NW and they do register details with CRAs but I think it is only if you are overdrawn. I need to check this out.

 

How are they able to register a default? Unless you have defaulted on an agreement in which case you should have been issued with a default notice and not just have it slapped on your credit file.

[sytra]

I have a Flexaccount with NW and they do register details with CRAs but I think it is only if you are overdrawn. I need to check this out

 

Our NW joint acc is registered with CRA's and it is always in credit (the only 1 that is)

[Its WAR]

The default notice was flawed. Summons has been served 14 days now and no acknowledgement....yet.

[Its WAR]

Judgement in my favour £575. Nationwide did not acknowledge the summons. I bet they wake up now though and apply to set aside.

 

So, a strategy! Payment is marked as forthwith. Do I request a warrant and send in the bailiffs, very quickly, before they get organised to apply to set aside? This will prompt a set aside application. Or, do I wait 4 weeks and hope Christmas gets in the way and they fail to apply to set aside?

 

The monery of course will just go to reduce the overdraft, so I doubt they will actually send a payment.

 

I just like the idea of them having to pay to apply to set aside and my bailiff fee.

 

Oh, I have a smile today.

Edited December 10, 2009 by Its WAR

[Its WAR]

So the judgement is dated 8 December, but today I get a letter from a DCA dated 14 Dec seeking the whole balance of the overdraft. The overdraft should of course be reduced by the CCJ awarded against Nationwide.

[Its WAR]

I have just checked my sons credit file and Nationwide have not (yet) reported it as a defaulted account, although they say the balance is overdrawn by £1000, they havent yet paid or credited the judgement debt.

 

The credit file shows a status history of 4, so it will soon get serious.

 

How should the judgement be enforced and when?

 

In a week or so, will the judgement will be recorded on their credit file?

Edited December 30, 2009 by Its WAR

[Its WAR]

Letter from Nationwides in house DCA asking me to contact them to arrange for me to pay a discounted sum to close the account. But they are still looking for the full amount and havent yet deducted the judgement against them for the refund of charges.

 

Should I offer them £500, get the account closed. And then enforce the £500 judgment??

[Rhia]

I would send a copy of the Judgement to their DCA and ask them how they propose to deal with this. Put the ball in their court and see what they come back with. Tell them if they don't reply within whatever time scale you have you will ask the court to enforce the judgment. Eeejits.

[Its WAR]

URGENT REPLIES NEEDED

 

Judgement in my favour has been set aside, without a hearing as a defence has now been filed . The court has advised I can apply to set aside or vary the order, but only have 7 days to do so.

 

I suppose it means the bank really do want to attend a hearing and properly defend the charges. Their defence uses some of the argument that was lost in the Supreme Court, but their defence is very limited.

 

What should I do to have the set aside overturned ? Also how should I deal with the defence?

 

Their Defence:

 

1. The Defendant admits the Claimant hold a current account with the Defendant.

 

2. Any charges debited to the Claimants account have been debited in accordance with the contract made between the Claimant and the Defendant in relation to the account.

 

3. The charges are not capable of amounting to penalties as they do not arise as a result of any breach of contract on the part of the Claimant.

 

4. The contractual terms imposing the said charges are fair according to the test prescribed in Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999. Further, and in the alternative, pursuant to Regulation 6 of the Regulations, any assessment of the fairness of the charges may not relate to the adequacy of the price as against the services provided by the Defendant in exchange.

 

5. The Defendant therefore denies that the Claimant is entitled to repayment of the charges, as claimed, or at all.

 

 

Also, What will the implications be for costs? The claim is only for £500 so I guess they will not get their barristers costs when attending the hearing, so why would they try to defend?

 

Also, I will need to have the new arguments ready as suggested by the Supreme Court. What are they?

Edited January 8, 2010 by Its WAR

[Its WAR]

I have just checked the default notice for flaws.

 

1. It asks for the whole overdraft £1070.17 to be repaid in full

2. To be paid by 8 Oct 2009.

3. Notice dated 24 Sept 2009.

4. Original overdraft facility expired anyway on 25 Sept 2009.

5. I dont think they have terminated the account yet, just cancelled the overdraft facility.

 

The DN has not yet been registered.

 

How will this affect my bank charges claim? Assuming the appeal against the set aside fails and I actually get a hearing for the £500 in charges.

 

Will I need to amend the particulars to argue any unlawful recission of contract? Although the overdraft part of the contract would have expired the day after the DN was issued.

 

How will the flawed default notice affect the debt?

 

Is a flawed DN worth making a report to FOS and thereby making Nationwide pay a £500 fine?

Edited January 11, 2010 by Its WAR

[Its WAR]

Back to the Default Notice. Mine is dated wrong (only 14 days and no postage time) and asks for the whole balance or account to be repaid. A seperate termination letter has not been sent?

 

I am ready to send off the unlawfull rescinded contract letter.

 

Except:

 

One month before my default notice was received, I had a letter dated 29 Aug. saying my overdraft facility was being reviewed as I had exceeded the overdraft limit. The facility would therefore expire on 25th Sept. Then the flawed DN was issued on 24 Sept requesting the whole amount paid off.

 

Is it still safe to send the letter? Have they terminated the contract or just removed the overdraft facility?

[Its WAR]

Is it safe to send the letter?

 

Its just that the overdraft facility appears to allow them to review it periodically.

 

I receive a letter 29 Aug 2009, headed Review of Your Overdraft Facility. It says they will no longer offer the facility and the overdraft expires on 25 Sept 2009 therefore I need to get the account back into credit.

 

A letter dated 11 Sept 2009, saying to bring the account within the facility or they may withdraw the facility and 2009 issue a default notice. (but hadnt they already withdrawn the facility 2 weeks earlier?)

 

A letter dated 24 Sept 2009 saying pay the overdraft off immediatley and enclosed is a Default Notice. The flawed DN dated 24 Sept 2009 asking for the whole balance to be paid by 8 oct 2009.

So, I am guessing the withdrawn overdraft could mean the arrears on the account is over £1000. But the DN dated the day earlier than the withdrawn facility deadline, asks for the wholse amount and not just the arrears.

Do I owe the arrears or the whole amount?

 

 

This is the letter: When should I send it?

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxUnlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated xxxxxxxxxxx2009, posted second class and received by me on xxxxxxxxx 2009, and your subsequent actions confirming your previous written intentions to terminate the agreement. (they havent said they would terminate only wirthdraw the overdraft)

 

Notwithstanding that the default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect, as laid out in s87 of the CCA 1974. Your actions have resulted in insufficient time for me to remedy the alleged default. Your actions have lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

I look forward to hearing from you.

 

Yours faithfully

Edited January 13, 2010 by Its WAR

[Its WAR]

Because nationwide got the judgement set aside, I have had to send in the Allocation Questionnaire by 16th. Dowes this mean Nationwide too would have had to send one in on the same deadline? If so, and they are late, can I ask the court to strike out their defence on Monday?

[Its WAR]

Nationwide have sent in their AQ and have applied for my claim to be struck out. I have to phone the Court on Monday to find out if the judge has done so.

 

So, if the claim is struck out, can I re issue under the new particulars post Supreme Court?

 

or, Do I wait for Nationwide to seek full repayment of the overdraft and defend the faulty DN and unlawful rescission.

 

I suppose I need to defend or pre-empt Nationwide actually recording the default with the CRAs. I would think they could do that as soon as or if the claim is struck out.

 

Any ideas?

[yourbank]

Did you send in your AQ ?

 

what did you put on it ? The court should take both AQs into account.

 

do you have a copy of Nationwides AQ ? If so can you type up the main bits

 

You can ask for it not to be struck out and for permission to enter revised particulars of claim.

[Its WAR]

My AQ is sent in. I just filled out the usual bits. It seems if the judge does agree to strike out, I then get to appeal within 7 days. Its a shame I didnt get to appeal a potential strike out with a combined revised particulars when I sent back my AQ. Anyway, my particulars did cover the area the supreme Court suggested. So we will see after the weekend.

[Its WAR]

Court has now set a date for a hearing in April. The hearing is to decide whether or not to strike out my claim. Nationwides defence relies on the Supreme Court test case judgement, that the charges are allowed and therefore I have no case.

 

So, I guess the judge will decide there and then whether to strike out. If he does strike out, its game over. If he does not strike out, I guess he will list a new date to hear the case. Or, will he hear it straight away?

 

I guess I need an argument to win the strike out AND I must revise my particulars, any suggestions?

 

But the case is more complicated.

 

The account is an overdraft which the bank reviewed and decided not to renew. They also issued a flawed default notice. I have accepted the unlawful rescission, but they have not replied.

 

So, my claim is for a refund of £500 bank charges and leaving me with a £700 proper overdraft. But due to the unlawful rescission, maybe I dont owe them the £700 either but just the overlimit arrears.

 

Should I therefore include the unlawful rescission argument into my new particulars?

 

Also, is the hearing a small claim, or is not allocated? Costs issues might therefore be a real barrier if the hearing is not allocated.

[Its WAR]

Just received a letter from Moorcroft demanding full payment or they will commence a legal action. Dont they know I have already issued one?

 

I still need an urgent answer. As I have accepted their unlawful rescission I only owe the arrears, should I still be seeking the return of the bank charges?

[Rhia]

Yes I would use the argument re s140 of the CCA and s51 of the UTCCR. Take a look on this and other forums for advice. You will need to give individual examples of how their actions are unfair and have caused problems. Get a spreadsheet drawn up and add interest to each chyarge and send it to Moorcroft without delay. They may well back off when they see there are charges.

It will be quite a fight but keep batting back at them.