N1 Claim 1st Credit Lloyds Overdraft*** Settled Tomlin Order***

[downsouth]

Poss statute barred, account was with Lloyds TSB Bank plc. I'd already fought and won some unlawful account charges back in to this account a few years prior, but there will have been more charges added since.

 

 

Particulars of claim, dated 27th and received today:

 

The claimant claims the sum of XXXX for debt and interest. The defendant from xx/yy/1987 held an account with Lloyds Bank Plc under account number YYYY Lloyds Bank Plc granted the defendant an overdraft facility.

 

Lloyds Bank plc demanded repayment of the outstanding sum on the account at that time. The account was in default on XX/YY/2009 and the outstanding balance was ZZZZ. On AA/BB/2013 the debt was assigned to 1st Credit (Finance) Ltd in the sum of ZZZZ. Notices of Assignment were sent to the Defendant in accordance with s.136 Law of Property Act 1925.

 

THE CLAIMANT CLAIMS 1. The sum of ZZZZ

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8% per annum from CC/DD/2013 to 1/7/2014, £££.pp, and thereafter at a daily rate of £.pp until Judgment or sooner payment.

 

 

 

 

 

I've acknowledged on line and prepared the CPR 31.14 (Current account overdraft version) which I propose to send to their sols, anything else I should do at the mo?

 

 

Thanks, ds

[AndyOrch]

Hi downsouth

 

No you seem to have the grasp of what the procedure is...take a look at other threads with overdraft claims and the defences that have been submitted.

Start to prepare yours and keep an eye on your timeline.

 

Regards

 

Andy

[downsouth]

Many thanks Andy.

 

SAR to Lloyds? 20+ years of statements but would help answer the Statute Barred and excessive charges issues. Or wait for now?

[AndyOrch]

You could...but you will be submitting your defence probably before they respond...if you could clarify the last deposit another way it would simplify your defence.Phone them?

[downsouth]

No response to CPR31.14 request yet. I'll start putting defence together, I need to file by 25th July (I go abroad the day after).

Bare bones look like Embarrassed, possibly statute barred, comprises (mainly?) excessive charges, any help appreciated again!

 

I haven't contacted bank re last payment date in case re starting the statute barred clock.

 

 

ETA recent thread by t-harv is relevant and has a good defence from Andy

http://www.consumeractiongroup.co.uk/forum/showthread.php?423026-Lloyds-TSB-debt-1st-Crud-issue-claim

[shamrocker]

What does 'excessive charges' entail? I have a similar situation that I'm keeping an eye on, but I know I paid a significant amount over to them in £28 fees over the years...sometimes (I think) it was the £28 charge that caused another £28 charge. Is this what you mean? Are they reclaimable?

[downsouth]

@shamrocker http://www.consumerwiki.co.uk/index.php/FAQ

[Guest]

..

I haven't contacted bank re last payment date in case re starting the statute barred clock.

 

 

 

i dont think the clock can be 'started' (you mean reset?) now as a claim has been issued (which stops any sb clock), either it was or not barred at the time of claim issue.

now, it wld be ensuring not admitting any liability re the claim when/if phoning (in case is not barred). and, if it is barred, then thats the end of their claim.

[downsouth]

Thx for clarifying that Ford

[AndyOrch]

So if you could check before the defence date it would make matters very simple.

[downsouth]

OK, had to go into the branch, it's not SB.

 

They printed out the statement sheet containing the last deposit, April 09, on that one sheet are charges for Overdraft interest, Account charge, Returned DD and Unplanned OD fees, so there'll be lots more. The account would have been in overdraft for many years, and a lot of that would be fees, more fees, and interest on those fees. Total claim is around the £6k mark. Back then I was financially struggling continuously with this.

[AndyOrch]

So you will be defending on the grounds of punitive charges / interest...and CCA compliance.

[downsouth]

Draft defence.

 

I've used a fair bit of your work here Andy, from various recent threads and amended it. If you have a chance to review this by Friday pm that would be great.

 

Particulars of Claim

 

1.The claimant claims the sum of XXXX for debt and interest. The defendant from xx/yy/1987 held an account with Lloyds Bank Plc under account number YYYY Lloyds Bank Plc granted the defendant an overdraft facility.

 

2.Lloyds Bank plc demanded repayment of the outstanding sum on the account at that time. The account was in default on XX/YY/2009 and the outstanding balance was ZZZZ.

 

3.On AA/BB/2013 the debt was assigned to 1st credit (Finance) Ltd in the sum of ZZZZ. Notices of Assignment were sent to the Defendant in accordance with s.136 Law of Property Act 1925.

 

THE CLAIMANT CLAIMS 1. The sum of ZZZZ

 

Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8% per annum from CC/DD/2013 to 1/7/2014, £££.pp, and thereafter at a daily rate of £.pp until Judgment or sooner payment.

 

 

 

Defence

 

1. I accept that I have held accounts with Lloyds Bank Plc but I am not aware or ever been informed of any legal assignment of this account number to the claimant.

 

2. I do not admit to defaulting on payments nor receiving any default notice and the Claimant is put to strict proof to evidence this breach.

 

3. The amount claimed is far in excess of any agreed overdraft limit with Lloyds Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account.

 

4. The defendant refutes that the claimants claim is owed or payable. The amount claimed is likely to be comprised in the main of default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

6. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the 7th July 2014. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Edited July 24, 2014 by Andyorch
Particulars added for reference

[AndyOrch]

Did you not check the last date of activity on this account downsouth ?

[downsouth]

Hi Andy

 

Yes per my previous post my last deposit was April 09, so not SB

[AndyOrch]

I have added their particulars to the above downsouth and numbered...now if you look at your proposed defence you will see that your responses 1/2/3 do not connect to the claimants pleadings...I would therefore recommend the following adjustments....

 

Particulars of Claim

 

1.The claimant claims the sum of XXXX for debt and interest. The defendant from xx/yy/1987 held an account with Lloyds Bank Plc under account number YYYY Lloyds Bank Plc granted the defendant an overdraft facility.

 

2.Lloyds Bank plc demanded repayment of the outstanding sum on the account at that time. The account was in default on XX/YY/2009 and the outstanding balance was ZZZZ.

 

3.On AA/BB/2013 the debt was assigned to 1st credit (Finance) Ltd in the sum of ZZZZ. Notices of Assignment were sent to the Defendant in accordance with s.136 Law of Property Act 1925.

 

THE CLAIMANT CLAIMS 1. The sum of ZZZZ

 

Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8% per annum from CC/DD/2013 to 1/7/2014, £££.pp, and thereafter at a daily rate of £.pp until Judgment or sooner payment.

 

 

 

Defence

 

1. Paragraph 1,I accept that I have held a current account with Lloyds Bank Plc. I have not serviced this account since 2009 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate.The amount claimed is far in excess of any agreed overdraft limit with Lloyds Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account.It is therefore denied that I am indebted for any alleged outstanding residue.

 

2.Paragraph 2 is denied I do not admit to defaulting on payments nor receiving Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and the Claimant is put to strict proof to evidence any breach.

 

3. Paragraph 3 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the 7th July 2014. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Regards

 

Andy

[downsouth]

Top stuff Andy, many thanks.

 

 

 

ETA defence filed, got message whilst filing This field has invalid characters. You cannot use ;& "

 

Took me about 4 re-reads to find the & in 4(f) above, just incase anyone else uses this part

[downsouth]

Reply from 1st Credit...

 

We enclose a Notice of Change of Legal Rep...

 

Your defence is that you dispute the charges on this account as being excessive and require documentation to substantiate the claim. We note that you admit to having a current account with LTSB but deny that you exceeded your overdraft limit [i didn't deny I said it will be mainly excessive charges]

 

We enclose the statements of account for the period 12/05 to 11/09. Your overdraft limit was £xxxx and it is apparent that you made full use of that facility.

 

You were notified of the charges to the account within your monthly statements. Therefore in order to avoid the account to go into an unarranged overdraft you would have been notified of those charges in advance. It was your responsibility to ensure that there were sufficient funds to keep the account within the arranged overdraft limit. We consider therefore that the charges applying to the account were fair and payable.

 

We also enclose the notice of assignment and introductory letter sent Dec 13. We note that it is the same address and submitted in your defence for service. We did not receive the notice as undelivered. As such the notice is deemed serve.

 

We note your request pursuant to CPR 31.14. Please note that CPR 31 does not apply because this is a small claims matter. Further no agreement is referred to in the Particulars of Claim such that agreement would be a disclosed document pursuant to CPR 31.14. In addition pursuant to Part V of the CCA 1974 an overdraft facility is exempt for the purposes of written agreements. We confirm therefore that no agreement is required for the debt to be enforceable.

 

As to a demand/recall notice whilst we have requested the original creditor to provide details of the same we confirm that this is a claim for arrears. As such a default notice is not required for us to enforce the debt.

 

Given that you admit to having a current account with overdraft facility we consider this to be a partial admission. We therefore invite you to contact us ith regard to settling the account without resorting to further costs in litigating. If we do not hear from you by [date] we will advise the court of our intention to proceed with this claim.

 

 

 

 

Whilst I'm trawling through the supplied statements gathering over limit etc fees, comments invited on their response would be appreciated!

[downsouth]

Charges and interest charged.

 

Statements supplied from Dec 05 - Nov 09, a total of 47 months of which statements for 8 of those months are missing.

 

Opening balance Dec 05 OD 4004.25.

 

Excessive charges on supplied statements £2475

Pro-rata to include missing statements totals £2982

 

Interest charges on supplied statements £1663.25

Pro-rata to include missing statements totals £2004

 

Closing balance Nov 09 OD £5606.27

 

Account open since 1989. All this time I was feeding the monster.

[AndyOrch]

Reply from 1st Credit...

 

We enclose a Notice of Change of Legal Rep...

 

Your defence is that you dispute the charges on this account as being excessive and require documentation to substantiate the claim. We note that you admit to having a current account with LTSB but deny that you exceeded your overdraft limit [i didn't deny I said it will be mainly excessive charges]

 

We enclose the statements of account for the period 12/05 to 11/09. Your overdraft limit was £xxxx and it is apparent that you made full use of that facility.

 

You were notified of the charges to the account within your monthly statements. Therefore in order to avoid the account to go into an unarranged overdraft you would have been notified of those charges in advance. It was your responsibility to ensure that there were sufficient funds to keep the account within the arranged overdraft limit. We consider therefore that the charges applying to the account were fair and payable.

 

We also enclose the notice of assignment and introductory letter sent Dec 13. We note that it is the same address and submitted in your defence for service. We did not receive the notice as undelivered. As such the notice is deemed serve.

 

We note your request pursuant to CPR 31.14. Please note that CPR 31 does not apply because this is a small claims matter. Further no agreement is referred to in the Particulars of Claim such that agreement would be a disclosed document pursuant to CPR 31.14. In addition pursuant to Part V of the CCA 1974 an overdraft facility is exempt for the purposes of written agreements. We confirm therefore that no agreement is required for the debt to be enforceable.

 

As to a demand/recall notice whilst we have requested the original creditor to provide details of the same we confirm that this is a claim for arrears. As such a default notice is not required for us to enforce the debt.

 

Given that you admit to having a current account with overdraft facility we consider this to be a partial admission. We therefore invite you to contact us ith regard to settling the account without resorting to further costs in litigating. If we do not hear from you by [date] we will advise the court of our intention to proceed with this claim.

 

 

And ? So proceed

 

Nothing to lose sleep over DS.

[downsouth]

Not worth replying to then I take it (until court)

[downsouth]

Hi again

 

Received N149a Notice of proposed allocation to the small claims track, along with N180 Small Claims Directions Questionnaire. Unsure about the mediation question yes or no, can't remember this being an option on previous earlier claims.

[AndyOrch]

Yes to mediation DS ....always been part of the AQ

[downsouth]

Just had a call from the mediation service to arrange tel. appt. What would a 'middle ground' settlement be then? I'm not thinking much £ as I'm feeling positive on being able to defend this successfully. Is it reasonable to offer the claimant the chance to withdraw and save themselves further costs or do I need to be offering more?

[AndyOrch]

We have a new sticky....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?433406-Alternative-Dispute-Resolution-(Mediation)

 

Andy