Rascal v Woolwich

[essjaysea]

The branch withdrawal fee apparently applies to any counter transaction. I queried this with my branch some years ago and they told me that I was allowed something like 5 free counter transactions per month, after which they would charge me 1 pound per item.

 

They suggested I used the deposit machine and/or the ATM both within the branch to save the charges. Suited me fine as it saved me having to queue.

 

As it is for a "service", it is probably not claimable .

[rascal]

5 days to receive defence... tick tock tick tock....

[MARTIN3030]

Rascal they will prob file at 11th hour.

[rascal]

I see from your sig. that they filed defence. What happens after this have you been given a court date?

 

Once you receive the defence from bank what do you then do do you wait for the court to contact you with the AQ questionnaire or will it come with the defence anyway?

 

Their 28 days is up on Monday was going to check Monday's post and file Monday afternoon if they do not enter by then am I right in doing this? - what if their defence arrived a day or so after?

[MARTIN3030]

Yes if its done by Moneyclaim the AQ comes with their defence.

You fill that in and send to the local court then wait for a court date.

[rascal]

Well postman has been and gone and have received nothing so far :? . I tried to enter judgement today on MCOL but wouldn't let me - presume I have to let them have today as grace (it was acknowledged on 21/08/06).

 

IF I win by default I'm a little concerned as to what happens. In my particulars of claim I stated that:

 

(usual blurb about 8% interest and then)....;interest at the same rate up to the date of judgment or earlier payment at a rate of 0.31 and court fees.

 

I'm not sure how I then go about working out the 0.31p interest rate. Do I just take my total original claim (£1914.25) and multiply it by 0.31p for the number of days since judgment (i.e. 28). ? My total claim including court fees is £2034.25.

[austenpowers]

The initial claim should have been for the charges plus 8% interest up to the date you made the claim. Then all you do is multiply the number of days since you made the claim by the daily rate of 31p, so for example, if you made the claim 30 days ago the interest would be 30 x 31p = £9.30.

 

Wouldn't be surprised if you receive a last minute defence though.

[rascal]

Yep received defence notification through MCOL today . Am nervous now. I owed them £1000 when I entered into my IVA with them 2 years ago - although they stand to receive back approx £460 from that when it is complete. They still owe me £2000 +, even if they offset my debt they would still owe me.

 

Will be interested to see if their defence includes anything to do with my IVA though.

 

If I get the court date for 8 weeks time I could well be in labour! I am due in 8 weeks on Wednesday! Was hoping I could start mat leave having this all done and dusted - hey ho. Que Serrah Serrah!

 

Anyone in the Dartford area that wants to be my buddy?!

 

R

[closey]

I would doubt very much if the defence mentions your IVA.

 

I will come with you if you go to court.

 

The braxton hicks will be starting soon, how exciting!

[rascal]

I've had braxton hicks since 20 weeks! - Am 32wks now and just about had enough! I'm convinced I have a rugby player in there!

[closey]

Since 20 weeks....blimey poor you!

[rascal]

I received court AQ this morning and defence. Haven't had a chance to read through as my HB only briefly flicked through it this morning and I'd already left before Mr Postman had arrived. HB said it doesn't include any provision relating to our outstanding debt or IVA. He said there are 14 clauses - is this pretty standard to their defence - HB said he was shocked as it was 3 pages long and has lost all heart in this now - I, however, am ready for a fight!

 

Will be filling out and sending back with a cheque tomorrow.

[MARTIN3030]

Dont be bewildered.

The Barclays one is the same.

Dont think there will be anything in there that you not seen or read about before.

Usual stuff we dont agree ...where is the proof bla bla bla.

 

Sort em out Rascal !!!

[closey]

Three pages long is pretty standard.

[rascal]

Ok Im going to post the defence received:

 

1. Save where indicated to the contrary, references to paragraph numbers below are to the Particulars of Claim.

 

2. Paragraph 1 does not provide details or particulars of the account in question. Notwithstanding the Claimant's failure correctly to identify or paritcualrise any account held with the Defendant, it is admitted that the Claimant has an account number ********, sort code ******.

 

3. Paragraph 2 is admitted, save that it is denied that charges debited to the Claimant's account were in respect of purported breaches of contract on the part of the Claimant. The Defendant is entitled to charge the Claimant for unauthrosied borrowings by reason of its standard terms and conditions. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of her account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft. The Claimant accepted the same when the account was opened.

 

4. The standard terms and conditions included (in particular but without limitation) the following terms and conditions (which are summarised):

 

a. The Defendant?s right to charge administrative costs if any cheque, standing order or direct debtit cannot be paid because of lack of cleared funds in the account - £30 per item (preivously £27.50).

 

b. The Defendant?s right to charge administrative costs if the Defendant was compelled to pay any items which caused the account to be overdrawn - £30 per item (previously £27.50).

 

c. The Defendant?s right to charge unauthorised overdraft fees - £3 per day.

 

d. The Defendant's entitlement to refuse any debt transaction or debit card transaction where there were insufficient cleared funds in the account and to debit from the Claimant?s account any charages, interest or other money which became payable by the Claimant to the Defendant in relation to the account.

 

e. The Defendant's entitlement, if the Claimant went overdrawn without an overdraft limit or exceeded his overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

 

f. The Defendant?s entitlement, if a cheque or other item paid to the account was returned unpaid, to debit the account with the amount of that item together with any interest paid by the Defendant on it.

 

5. The Defendant's standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the Claimant exceeds her authorised overdraft limit).

 

6. If and to the extent it is the Claimant?s case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the Claimant?s account constitutes a liquidated damages clause, the same is denied. Paragraph 3 above is repeated.

 

7. The existence of the scehdule referred to at paragraph 3 is admitted. The Claimant is required to prove the charges set out therein.

 

8. For the reasons set out above and in the premises, paragraphs 4(a) and (b) are denied in their entirety. It is denied that the legal principles relating to liquidated damages clauses and penalty charges are relevant or applicable to the facts set out above. Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations, or are in breach of the Unfair (Contracts) Terms Act 1977. It is further denied that any such charges unduly enrich the Defendant.

 

9. There fore it is denied that the charges were unlawfully debited from the account.

 

10. If and to the extent the Claimant incurred charges on her account, this was caused by the Claimant having gone into overdraft without having agreed with the Defendant to increase the overdraft facility and/or her failure to make payments to bring the balance of the account back into credit or back within the authorised overdraft limit.

 

11. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same. Accordingly, the Claimant is not entitled toa declaration by the Court as to the enforceability of the said charges whether as pleaded at paragraph 5(b) or at all.

 

12. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant in paragraph 5 or at all.

 

13. In the alternative, and without prejudice to paragraph 9 above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, the Defendant has nonetheless suffered loss and damage as a consequence of the Claimant's breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the Defendant is unable to to rely on its express entitlement to enforce the charges as set out at paragraphs 3 to 5 and 11 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendnant seeks to set off such sums against any liability owed hereunder to the Claimant.

 

14. The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded by the Claimant or at all. In the alternative, which is denied, if the said charges amount to sums payable on breach of contract, it is averred that the charges asserted by the Claimant to have been applied to the account prior to 8th August 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, pursuant to the Limitation Act 1980.

 

Barclays Bank PLC

__________________

 

Right, when I entered into my IVA with them I owed them (Woolwich) £1018.83. My claim is for just over £2k.

 

Barclaycard were also one of my creditors - I entered my IVA with them owing £7691.55 (this was before Woolwich became Barclays etc.) and I presume this debt will have nothing to do with the Woolwich.

 

When they talk about offsetting they do not mention any debt I had with Barclays PLC I presume they just refer to the £1018.83 that I had with Woolwich. Of which when IVA is complete Woolwich will get back £431.98 and Barclaycard would get back £3261.28.

 

They are obviously already legally bound to accept the terms of the IVA, I am not breaching any terms of IVA by claiming back this money (am I?). I figure even if they offset therefore the debt that I owe Woolwich compared to my claim they still would owe me over £1600. Barclaycard have also now sold my debt on to a third party.

 

 

HELP!!!!!!!!!!!!!!!!!

[rascal]

*bump*

[MARTIN3030]

Rascal I am looking into this for you.

[closey]

Morning Rascal, Martin3030 has beaten me to it!

[rascal]

Thanks, I take it their defence is a little out of the ordinary then?

[austenpowers]

It's very similar to mine. The only extra bit you have is the last paragraph regarding the Limitation Act, are some of your charges from more than 6 years before you started your claim?

[rascal]

The first charge that I put down is dated 28/02/01. I have just re-read through my Particulars of Claim and I stipulated that I would be claiming interest for the period from 28/02/01 to 15/08/06 which is the date that I filed the claim.

 

Also looking at my Particulars of Claim I DID list the account number that I held with the Woolwich in the second line??

[austenpowers]

I don't think there's anything to worry about Rascal. Just carry on with the next stage and fill in the AQ and send it to your local court, then wait for a court date some time around christmas.

[MARTIN3030]

There have been amounts paid from before the 6 years.

If any amounts are tied in with a claim post 2000 then they still have to defend,although they will argue the limitation.

[MARTIN3030]

The defence within itself is standard reply........in fact its exactly the same as the one I have got for my business account.

 

I am waiting on points of clarification as regards implications towards the IVA.

 

If others following the thread have comments regarding this ....then lets hear them.

[rascal]

Thanks everyone! - am really keen to obviously get this sorted. I'm taking my AQ to the court direct on Monday as its only up the end of the road. Do I just fill it in as has been recommended on here before or do I need to include provision for anything else? If I do win will Woolwich also be liable for the further £100 court fee?

 

Oh I should add, on all my correspondence to the Woolwich I did not add a contact telephone number or email address - should I send this to them now with a further copy of the spreadsheet of charges to see if they would like to "verbally discuss" before court or should I continue with things in writing?

 

Thanks!