Newbody Vs Abbey

[newbody]

ok update filed n1 at colchester on thursday after mad nicks advice revised it to the following

 

Claimant

XXXXXXXX

XXXXXX

Essex

XXXXXXXX

 

Defendant

ABBEY NATIONAL PLC

ABBEY NATIONAL HOUSE

2 TRITON SQUARE

REGENT'S PLACE

LONDON

NW1 3AN

 

Brief details of claim

 

Money claim for return of penalty charges applied to the Claimants bank account by the Defendant

 

Value

 

Penalty charges in the sum of £4,454.00 and Interest to be determined as the Court deems just, as per section 10 of the attached Particulars of Claim, with the maximum to not exceed £6,975.13. A maximum total of £11,429.13

Plus any applicable Court fees.

Plus interest from date of issue to date of judgement or earlier payment at a maximum rate of £8.99 per day or at such rate and for such periods as the Court deems just, according to section 9 of the attached Particulars of Claim.

 

 

Amount claimed £11,429.13

 

Does, or will, your claim include any issues under the Human Rights Act 1998? No

 

Particulars of Claim (attached)(to follow)

 

1. The Claimant has a Current Account, number XXXXXXX (“the Account”), operating from the Defendant’s XXXXX branch (sort code XXXXX)

2. The Account is governed by the Defendant’s Personal Banking Terms and Conditions (“the contract”)

3. During the period in which the Account has been operating the Defendant has debited numerous charges to the Account in respect of purported breaches of contract in regards to “Card Misuse”, “Unpaid Items”, “Referral Charge”, etc.. on the part of the Claimant and also charged overdraft interest on the charges once applied.

4. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

5. A schedule of the charges and overdraft interest applied is attached to these particulars of claim (Appendix 1), that itemise the charges and interest charged thereon.

6) It is impossible to envisage how the Defendant can incur costs of £30-40 for a default when the rejection of a direct debit, application of the default charge and sending out a computer generated letter are completely automated. The letter received notifying a charge is identical in every instance, and if multiple breaches occurred on the same day, a separate letter will be sent in each instance. The charge is the same regardless of whether the breach of overdraft is £1 or £1000

7) Therefore the Claimant contends that:

a) The contractual provision that permits the Defendant to levy the charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and Schedule 2(1) sub paras (e)(i)(j)(q); the Unfair Contracts Terms Act 1977 section 4 and the common law;

b) the charges are punitive in nature; are not a genuine pre-estimate of costs incurred by the Defendant in relation to the purported breaches; and far exceed the actual costs to the Defendant in each case. c) The view that such charges are a penalty is supported by common law (inter alia, Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] [AC79]; Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281 (TCC); Lordsvale Finance PLC v. Bank of Zambia [QB 752]; Murray v. Leisureplay [EWCA Civ 963]; Bridge v. Campbell Discount Co. Ltd [AC 600]; Commissioner of Public Works v Hills [AC 368]

d) in its replies, the Defendant has ignored the Claimant’s requests (Claimant’s letters dated 6th Feb 2007 and 20th Feb 2007 ) to disclose the costs which it incurred as a result of the breaches to which it applied the charges thereby to confirm that its charges are : proportionate to its admin expenses incurred due to the Claimant’s breach of contract; and a genuine pre-estimate of the damage suffered by the Defendant, and not a penalty.

e) the Claimant’s assertion that the Defendant’s default charges far exceed the actual costs to the Defendant in each case and therefore constitute a penalty is supported by :

i. Investigation (December 2004) by the Consumer Law Centre, Victoria, Australia which concluded that Australian Banks’ default charges ($25-50 ≈ £11-22) are at least 5 times greater than their costs of dishonouring cheques and at least 64 times for dishonouring direct debits, and constitute penalties as this is excessive and out of all proportion to their costs;

ii. Treasury Select Committee, 2nd report, 25 January 2005. Banks' evidence (not the Defendant although its charges are similar/competitive) was that their default charges included costs unrelated to an actual breach;

iii. Office of Fair Trading report (OFT842, April 2006) about credit card default charges which stated that default fees have been set at a significantly higher level than is fair for the purposes of the Unfair Terms in Consumer Contracts Regulations (1999). The OFT stated that its findings were likely to be relevant to bank account charges;

iv. Members of Parliament who expressed concern about the “exorbitant costs to customers of default charges applied to current and credit card accounts” in two House of Commons Early Day Motions (EDMs 2227/0506 and 500/0607);

v. Competition Commission inquiry into personal banking in Northern Ireland (provisional findings October 2006). The Commission noted that Banks’ default charges include unrelated costs and profit; i.e. the charges are significantly greater than Banks’ actual costs;

vi. Treasury Select Committee - Thirteenth Report, 7 November 2006, HC1717 which stated that “We are not convinced that penalty charges of up to £39 are reasonable and accurately reflect the costs incurred by the banks.”

vii. Investigation by commission of experts for BBC Money Programme (12 December 06) which concluded that the highest cost which banks could justify were £4.50 for dishonouring cheques, and £2.50 for dishonouring direct debits and dealing with unauthorised overdrafts, compared with typical default charges of £30.

 

8. The Claimant thus contends that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) Are not a genuine pre-estimate of cost incurred by the Defendant;

iii) Exceed any alleged actual loss to the Defendant in respect of any breaches of contract On the part of the Claimant;

iv) Are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

c) In the alternative to a) & b) above, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

 

9. Contractual Interest

a) The Claimant claims compound interest on the amounts claimed under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, using the rate and method specified in the said contract, and as is applied by the Defendant to monies it is owed.

 

b) The Claimant’s grounds for seeking restitution of the compounded contractual rate of interest is that the Defendant would be unjustly enriched if the Claimant's entitlement was limited to the statutory rate of interest in that the Defendant has had use of the sums and would have used these sums to re-lend at commercial compounded rates.

 

c) The Claimant contends that the taking of unlawful penalties from the Claimant’s Account is deemed as unauthorized borrowing by the Defendant. Therefore, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, in the first instance the Claimant has calculated compound interest at the Defendant’s current unauthorized borrowing rate advertised by the Defendant’s web site, being 28.7% EAR. The Claimant understands that the unauthorized borrowing rate at the time of opening the account was actually over 33%, but believes that using the current rate gives a fair result.

 

d) In the alternative to c), should the taking of unlawful penalties from the Claimant’s Account not be deemed to be unauthorized borrowing by the Defendant, then, under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, the Claimant has calculated compound interest at the Defendant’s lowest current authorised borrowing rate for the account, advertised by the Defendant’s web site, being 16.9% EAR.

 

e) In the alternative to c) and d), if the Court decides that the Claimant is not entitled to the contractual rate of interest under the principle of mutuality and reciprocity in the contract between the Claimant and the Defendant, then the Claimant has calculated interest under section 69 County Courts Act (1984) at the rate of 8% a year

 

f) Schedules of interest calculated and are attached to these Particulars of Claim as follows:

Appendix 2 – Compound interest calculated daily at an annual rate of 28.7%

Appendix 3 – Compound interest calculated daily at an annual rate of 16.9%

Appendix 4 – Simple interest as per s.69 of the County Courts Act 1984 at an annual rate of 8.00%

Appendix 5 – Print of the Defendant’s web site showing the current borrowing rates

 

10. Accordingly, the claimant claims:

a) The return of the amounts debited between 23-Dec-2001 and 122-May-2006 in respect of charges in the sum of £4,454.00

 

b) Any applicable Court fees

 

c) Compound interest at the contractual rate of 28.7% EAR from the date of each transaction to 6th March 2007 of £6,975.13, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £8.99

 

d) In the alternative to c), compound interest at the contractual rate of 16.9% EAR from the date of each transaction to 6th March 2007 of £3,154.12, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £3.52

 

e) In the alternative to c) and d), interest under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to 6th March 2007, of £1,065.87 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £1.21

 

f) All payments by the defendant are to be made by cheque to the claimant and not into the account in dispute. To which the claimant has no access due to the defendant to all intents and purposes closed the account by having passed it to an outside debit collection agency and having recalled all bank cards and cheque books in respect of this account giving the claimant no means of being able to check any monies passed on to them or being able to gain access to the monies in question and would also demonstrate on the defendants part even more cause to deprive the claimant of their monies for an even more extended period of time.

 

So now waiting for notice it served and abbey to file their defence

EDIT : Information from Mccuths post and Mad Nick thanxs and credit to whoever else contributed to it

[newbody]

Ok update recieved this in the morning post standard delay tatics letter of we are investigating but not resolved yet sorry to say but court papers served yesterday :lol:

 

 

Abbey

Complaints

Abbey

PO Box 51 29

Nlilton Keynes

MK9 2YN

Telephone: 0845 600 6014

Facsimile: 0845 600 1378

Typetalk: 18001 0845 600 6014

 

Email: customerservices@abbey.com

 

Date: 08 March 2007

 

Our Ref XXXXXXXXXXX

 

 

Dear Mr XX XXXXXX

As you know, we are currently investigating your complaint that you raised with Abbey four weeks ago. l am sorry for the delay you are experiencing and I would like to take this

opportunity to thank you for your continued patience,.

Our research is taking longer than expected because we want to make sure a full investigation is done. If we are unable to complete our investigation beforehand, we will write to you again in four weeks time to let you know how we are getting on.

I am sorry that it is taking longer than originally though: and would like to reassure you that your complaint is very important to us.

Yours

 

 

 

sincerely,

 

 

 

 

Richard

 

 

 

Harris

 

Head of Complaints

[newbody]

ok update Recieved a GOGW in the post today once i had settled down enough to scan it on to the pc I have entered it on here for all to see now the question is how many of you honestly think I should settle for this as a fair offer allowing for my missus has threatened to leave me if I do accept it (so it does have some appeal to accepting it )

13 March 2007

Our ref:XXXXXXXXX

Abbey Current Account XXXXXXXXXX

Dear XXXXXXXX

Thank you for your letter dated 6 February 2007, about the charges on your bank account. I have now carried out a full investigation on your behalf.

I'm sorry you are unhappy with the charges and I understand you would like these refunded. Although the charges were correct, as a gesture of goodwill, I am happy to refund £233. (bet they are I claiming for over £11,000) I have sent a cheque for this amount to our Debt Management Department, to help repay any remaining outstanding balance on your account.

I appreciate your feelings on this matter but we are satisfied that the charges do not contravene the Unfair Terms in Consumer Contracts Regulations 1999. We also comply with the Office of Fair Trading, in dealing fairly and openly with our customers.

When opening your account you were provided with information detailing the terms

and conditions. We have also sent you regular updates and Tariff of Charges, which

detail the amounts of our charges. I have enclosed a further copy for you.

You have requested a breakdown of how our charges are apportioned and I regret that I am unable to provide you with the specific information that you have requested.

I can inform you that your charges are based on the extra administrative work

incurred by Abbey when, for example, an account has insufficient funds to meet a

requested payment. Abbey believes that it is reasonable to make a charge on such

an occasion to pass on the costs incurred by the bank and that the charges applied

to the account are fair and transparent. Should you require details of the specific

charges applicable, these are stated in the terms and conditions of your account.

Any information registered with credit reference agencies is a true and factual reflection of the situation on your account. We are required by the Information Commissioner to register and share information on how customers run their accounts. Because of this, we are unable to remove or alter the information that is held. However, when the outstanding balance is paid in full, although the default will remain, it will then be Please be assured I have carried out a full investigation for you and I hope you feel I

have offered a considered and complete response to all of the issues you've raised. I

will keep your file open for the next. 8 weeks and if I don't hear from you within that

time, Iwill assume that everything is resolved and will close your file. If you remain

dissatisfied though, the leaflet you'll find with this letter explains your rights and how

to take your complaint further within Abbey. The address to contact is:

Complaints

Abbey

PO Box 5129

Milton Keynes MK9 2YN

If you remain unhappy with the response from the Complaints Department, you have an ultimate right to refer your complaint to the Financial Ombudsman Service.

Stephen Hill Senior Customer Resolution Manager

Enc. Complaints Leaflet Tariff of Charges

[newbody]

15th March 2007

Response to Gesture of Goodwill.

 

Dear Stephen Hill

 

Thank you for your letter dated 13th March 2007. However as you should now be aware on the 8th March 2007 I filed with Colchester County court paperwork to start court proceedings against Abbey for the full amount I believe to be owing to me.

So I respectfully decline your Gesture of Goodwill and will assume by the return of this letter that you will not send the cheque to your debt Management Department or will place a stop on the said cheque. As you should be aware my account has been passed to an outside debt collection agency and I have no access to the account (bank cards etc to check the balance outstanding) So I will assume that on your receiving of this letter you will take the appropriate action to re-claim the £233 offer you have made (you have my permission in this instance to remove the aforementioned £233) as I will deem it as not paid and pursue this matter through the courts for the full claimed amount. To trial if need be unless a suitable agreement can be made prior to trial. Whilst I appreciate your assumption that this would be an acceptable sum to myself if indeed your charges are a true cost of what the administration costs are in regards a breach of the account, I am not of the same consensus and believe the charges to be nothing more than a Penalty and thus not legally sustainable as such, and request you do not make ay further unagreed payments without consulting with myself first.

Also in reference to your letter you say you are not able to provide me with specific information regarding the breakdown costs in regards these charges. Then with no offence meant surely then this matter should be passed on to someone who is able to pass to do this and save the prolonged drawn out action from continuing. Again I re-iterate if your charges are a true reflection of your costs and not a Penalty charges as I believe them to be then I will be happy to cease all action but failing the supply of this information then I will be forced to continue with the above said legal action.

 

In regards the default in formation you have filed in regards this account yes I agree that it is your duty to register and share information on how we run our accounts But due to the fact again that Charges in excess of what are true costs are what bought this breach into effect it is therefore my contention that it was not my handling of the account that caused for these defaults to be occurred but yours as my Bank taking money in excess of what it should have. Therefore again I request that you remove the said defaults from my record not merely mark as satisfied otherwise I will be continuing my legal action on with this matter as well.

So to recap

I require you stop any payment of this Gesture of goodwill or remove it from the said account

You provide me with a full breakdown as to the true cost of what each charge costs Abbey to administer in relation to the defaults

You remove the default history from my credit rating

And with any further offers of settlement you correspond with me before making the payment

 

 

I trust this clarifies my position.

 

 

Yours faithfully

 

 

Newbody

 

 

 

Comments welcome

[sutherm]

Hi Nobody

I have just sent off my first letter requesting my statements too. I have been with Abbey for nearly 17 years.

 

I am a little scardy pants to be taking on my bank it has taken me over a month to have the bottle to sent the letter to them !

 

Sutherm

[newbody]

Dont worry you have taken the first step and that is by registering here

the next thing to do is start your own thread so it keeps all your information together and read others experiences as it will show you all the dirty and underhanded bully boy tatics the banks will try to apply to you to get you to stop claiming your charges also only claim for what you are comfortable with as you may need to present your arguments to a judge

 

the easiest claim is for charges and interest they debited on the charges and statutory interest sec 69 8% when you file at court

 

i am of the mind they made my life hell so i will give them some back ad i am trying for the unproven charges and compounded unauthorised interest on top of their charges as well but this is unproven yet as to the best way to go and you will need to do alot of research on it yourself as well

 

but otherwise hi and welcome to the campagian

[TUTTSI]

Hi Newbody, I too received a GOGW today from Abbey, £383.00 against almost £7K, how they get to this amazes me when they say that the charges do not contrevene the Unfair Term etc, etc... so why do they make such a stupid offer.

I am now writing back accepting this on a partial settlement only. Now do I wait untill I am sure that they have refunded this amount before making the claim or make the claim for the full amount.

Good luck with your claim, I think you are just ahead of mine.

DS

[newbody]

well you cant claim until monday now at the earliest unless you are using mcol you could get your n1 filled in in preperation and amend the amounts if required monday before printing it off or sending it using mcol

 

as for how they arrive at figures god knows but as the letter with my GOGW didnt actually say what it was for it is merely an inference that it is in regards the charges

 

I'm sorry you are unhappy with the charges and I understand you would like these refunded. Although the charges were correct, as a gesture of goodwill, I am happy to refund £233. I have sent a cheque for this amount to our Debt Management Department, to help repay any remaining outstanding balance on your account.

I was tempted to send a letter saying thank you for gesture of goodwill i am assuming this is to try and restore my faith in yourselves as a bank and as such i am happy to accept it but i will still be pursuing you for the amount you have levied against me in the region of 11K

:D :D

[julied1]

Hi Newbody,

 

I'm quite a bit of a way behind you. I'm just waiting for the microfiched information. I have started my own thread, but still like having a nosey about. I did have some statements but when I got the copies, there was missing information on the copis there was no mention of my overdraft limit and the charges were not listed on the front of the statement like on the originals.

 

I was just wondering what the microfiched informatiob provides you with?

Thanks

[newbody]

Update paper now deemed served on Abbey 14 days to now to file intent

 

Newbody hopes they are so swamped they will forget on his

Doubt it but can but hope

[minimaya]

hi everybody, i to have started a claim from Abbey, I sent first request on 7th march, got the same standard response as you did on the 16th, i am now in process of second and final warning and have now decided to claim back 8% interest on top. no doubt i will recieve the same be patient response as you did, i am posting letter today stating i will start court proceddings on 5th April. i am claimming over three different accounts, does that mean i have to file 3 times in small court, this could work out expensive for me. I will be watch how all your claim goes. Best off luck x;)

[newbody]

you can make the claim in one go for all 3 accounts if you wish but be warned if the total of claim exceeds £5000 then it could put you on fast track where their is a risk of costs being awarded but having said that you can still request small cliams court if the value of claim does put you outside the £5k amount then you have valid reason for 3 claims one for each of the accounts also depending what benifits if any you are on you maybe exempt from fees (income based jobseekers) or entitled to a reduced fee (working tax child tax credit) worth checking it out

[2gr82btrue]

jOY V Abbey

 

I have applied to the court for charges totalling £745.00 and believed that the interest was 8% of the total amount. now i believe this is wrong as I may have not calculated it correctly as i am now told its 8% a year. I have no idea whatsoever how to calculate it to ask the courts for permission for alteration of the facts.

 

Can someone help me please as the form will come to me in a day or 2 to return to the courts.

[newbody]

Update abbey Served notice to defend on 29th MArch so now awaiting their defence papers they have until 17th april to serve them

[newbody]

Location Code: TS6 B03

Abbey National House

2 Triton Square/ Regent's Park London

NWl JAN

Tel: 020 775 64306

Tel: 020 775 64398

Fax: 020 775 65627

Dear Mr XXXXX

YOURSELF -V-ABBEY BANK PLC CLAIM NO: XXX

We enclose by way of service a copy of the Defence that we have filed with the

Court.

Yours faithfully

Abbey National plc

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

2. It is admitted that the Claimant has current bank account with the Defendant, account number XXXXX (the "Account") Agreed

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 the Claimant opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts: So we had a contract

 

(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."

Thank you for giving me the rate as we had a contract that means i can charge you this rate as well

4. Throughout the period that slhe has had the Account, the Claimant received 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 separate occasions, full details of which will be provided on disclosure. Therefore 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. So under the mutuality idea then as you made unauthorised drawings on my account and as such are therefore in breech of our contract you are liable to pay for it as well

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 £4454.00 or any other amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied. Well we agree the amount but disagree as to the lawfullness

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

And pigs do fly

9. Further or in the alternative, even if the said fees are not proportionate 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 charge made to the Account. Does this sound like a if you call my bluff i better have a get out clause in ready to cover my slimy rear end

10. The Defendant denies that the Claimant is entitled to claim interest in the sum of £6975.13, or any other amount. Why not is it cause i white trash and it will cause you to lose money

You already said above that unauthorised borrowing will be charged at these rates so that is what i have done unless you are telling me you stole my money by fraudulent means

11. The Claimant's contention that the Defendant unduly enriched itself is denied. What would you call take money you not entitled to and then making a profit off it

12. 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 defence are true.

I am duly authorised by the Defendant to sign this statement.

Full name: Micha-Rose Emmett of Abbey National plc

signed SIGNITURE position or office held: Paralegal Doh not even a solicitor just their understudy

Date: 4 April 2007

Will write my response to the defense up later when i stop laughing

[2gr82btrue]

Location Code: TS6 B03

Abbey National House

2 Triton Square/ Regent's Park London

NWl JAN

Tel: 020 775 64306

Tel: 020 775 64398

Fax: 020 775 65627

 

 

 

Dear Mr XXXXX

YOURSELF -V-ABBEY BANK PLC CLAIM NO: XXX

We enclose by way of service a copy of the Defence that we have filed with the

Court.

 

 

Yours faithfully

Abbey National plc

 

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

 

2. It is admitted that the Claimant has current bank account with the Defendant, account number XXXXX (the "Account") Agreed

 

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 the Claimant opened the Account. The Defendant will refer at trial to the full Conditions but for the purposes of this Defence will refer to the following extracts: So we had a contract

 

 

(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."

Thank you for giving me the rate as we had a contract that means i can charge you this rate as well

4. Throughout the period that slhe has had the Account, the Claimant received 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 separate occasions, full details of which will be provided on disclosure. Therefore 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. So under the mutuality idea then as you made unauthorised drawings on my account and as such are therefore in breech of our contract you are liable to pay for it as well

 

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 £4454.00 or any other amount was unlawfully debited to the Account and the Claimant's claim for the repayment of that amount is therefore denied. Well we agree the amount but disagree as to the lawfullness

 

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

And pigs do fly

 

9. Further or in the alternative, even if the said fees are not proportionate 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 charge made to the Account. Does this sound like a if you call my bluff i better have a get out clause in ready to cover my slimy rear end

 

10. The Defendant denies that the Claimant is entitled to claim interest in the sum of £6975.13, or any other amount. Why not is it cause i white trash and it will cause you to lose money

You already said above that unauthorised borrowing will be charged at these rates so that is what i have done unless you are telling me you stole my money by fraudulent means

 

11. The Claimant's contention that the Defendant unduly enriched itself is denied. What would you call take money you not entitled to and then making a profit off it

 

12. 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 defence are true.

 

I am duly authorised by the Defendant to sign this statement.

 

Full name: Micha-Rose Emmett of Abbey National plc

 

signed SIGNITURE position or office held: Paralegal Doh not even a solicitor just their understudy

 

Date: 4 April 2007

 

 

Will write my response to the defense up later when i stop laughing

 

 

 

 

joy v abbey

 

 

i have just thias morning asked the court to amend my papers as the amount of ineterest was incorrect and i thought it only fair to get back the amount i am entitled to as they were only too keen to take it from me in the first place sometimes leaving my household with no money for household items, food and utilities. I completed the remisssion form and it is now in their hands. Took in the allocation letter at the same time. All the papaerworks been checked and submitted. the Abeey despite my letters have not discloed their charges................ but then again they cant can they?

[FOXYLADY1970]

HI NEWBODY IM ALSO AT THE SAME STAGE AS YOU HAVE YOU FILLED IN A AQ yet I have just sent mine of to bury St.Edmunds court so local to you to. I have ignored there defence letter and will see what court decide? not sure if that was the right thing to do. Keep me posted on your case would be great to see how your getting on

[newbody]

Foxy no not filled in AQ yet only just got the defence this morning and a week early to boot so Will start drafting my AQ ready now for when the time comes might even send a letter alongside it yet in regards the defence or lack thereof of one

[newbody]

Ok just update to my actions so far

 

in regards the defence compiled aload of notes from other peoples threads and will look at the arguments for and against maybe asking for summary judgement as the defence isnt one

 

Might look at responding to it alongside AQ when it arrives not sure yet just whieghing up the options open to me at the moment

 

But in the mean time found a nice letter on someone elses thread ( cannot remeber whoose at the minute so apologies for not crediting you with it but if i remeber i will ) In regards SAR and pre 6 year info so typed it up and sent it off. If something comes of it gives cause to a 2nd claim when this one is settled or a ruling comes on the lawfulness of the charges

 

anyhow here is the letter i poached

 

ABBEY NATIONAL PLC

ABBEY NATIONAL HOUSE

2 TRITON SQUARE

REGENT'S PLACE LONDON

NW1 3AN

 

 

6th April 2007

 

 

Data Protection Act 1998

Subject Access Request

Dear Sir/Madam

 

 

ACCOUNT NUMBER: xxxxxx Sort code: xxxxx

Your REF xxxxxxxxxx Account

 

 

Thank you for the information you recently provided me with regards my Data Protection Act Request. Unfortunately however it does not fulfil my request.

It appears that my original request was either not read properly, or was misinterpreted.

It seems a lot of banks are wrongly interpreting the Data Protection Act (DPA) 1998 as a requirement to only disclose six years worth of personal data, and this is also wholly wrong.

The DPA clearly states that all information held must be disclosed and it has no correlation to the Limitation act 1980 at all.

You have only provided me with partial information regarding one of my accounts, which is far from complete, and not in accordance with my request and no explanation as to why the information has not been provided.

 

Once again I now ask that you provide me with all records relating to my banking history with yourselves regards the above account.

Whilst not exhaustive and for the avoidance of doubt I shall list what I require:

• Full copies of all contracts that exist between myself and your organisation; including copies of any documents you hold in support of same.

  
  

• Copies of all statements relating to the above accounts.

  
  

• Copies of all correspondence, including all letters, faxes, emails and memos sent and received between ourselves, and any other third party in relation to any of the above accounts.

  
  

• Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

  
  

• Full details and copies of any documents upon which you relied when you have provided my personal or financial information to any individual, organisation or third party.

  
  

• Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information.

  
  

• Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.

  
  

• Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, reason for deletion, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

  
  

As I have previously issued this request, and given you 84 days to comply, I can not now be expected to wait the same period again, so shall give you a further 14 days from the date this letter, in order to comply. If retrieval of any of this information should require longer than this, I would like an explanation as to why, and a reasonable estimate of the length time it should require (up to a maximum of 40 days).

In the meantime I would like any information that is more readily accessible to be sent without delay.

I have previously provided you a cheque for £10 to cover the cost of this request.

Yours faithfully

 

NEWBODY

You have 14 days to comply with this request. If you fail to comply fully I shall enter a formal complaint with the Information Commissioners Office which could result in a fine and prosecution

[newbody]

Ok update on 14Th April recieved the AQ from the courts it is on form N150 which is fine as i intend on asking for FAST TRACK now could do with some advice on how i have filled this in to make sure i havent done any major mistakes or missed anything out also when sending back this AQ plan on asking for the defence to be struck out subject to CPR 3.4 defence doesnt hold water and request summary judgement accordingly i wont be submitting this until the 23rd ish as doesnt need to be in until the 30th views and advice comments welcomed as always

 

AQ

 

Section A Settlement

Do you wish there to be a one month stay to attempt to settle the claim, either by informal discussion or by alternative dispute resolution?

No

 

B Location of trial

 

Is there any reason why your claim needs to be heard at a particular court?

 

If Yes, say which court and why? YES

 

XXXXXXX County Court

 

The Claimant is a Litigant in Person, and claiming against a company that carries on business in this area, and thus the claim should be heard locally to the Claimant.

 

C Pre-action protocols

If an approved pre-action protocol applies to this claim, complete Part 1 only. If not, complete Part 2 only.

If you answer ‘No’ to the question in either Part 1 or 2, please explain the reasons why on a separate sheetand attach it to this questionnaire.

 

Part 2

 

No pre-action protocol applies to this claim.

 

Have you exchanged information and/or documents (evidence) with the

 

other party in order to assist in settling the claim? Yes

 

D Case management information

 

What amount of the claim is in dispute? £ What do i put in here CHARGES or CHARGES + CI @28.7% so 4454 or 11k

 

Applications

 

Have you made any application(s) in this claim?

 

If Yes, what for? (e.g. summary judgment,add another party)

 

No

 

Witnesses

 

so far as you know at this stage, what witnesses of fact do you intend to call at the trial or final hearing

including, if appropriate, yourself

 

Newbody the amounts debited and the dates on which the charges were taken

 

Experts

 

Do you wish to use expert evidence at the trial or final hearing?NO

 

Have you already copied any experts’ report(s) to the other party(ies)? No

 

Do you consider the case suitable for a single joint expert in any field? Yes

 

Please list any single joint experts you propose to use and any other experts you wish to rely on.

Do you want your expert(s) to give evidence orally at the trial or final hearing? No

 

Track

Which track do you consider is most suitable for your claim?

Tick one box

fast track

 

If you have indicated a track which would not be the normal track for the claim, please give brief reasons for your choice

 

The actual charges and overdraft interest elements of this claim total £4454.00 - the balance is for contractual interest applied under the principles of mutuality and reciprocity in the contract. This is set out in the Particulars of Claim (paragraphs 9 & 10), with rates of interest specified as the unauthorised borrowing rate, the authorised borrowing rate and also 8% s.69 County Courts Act 1984. As the claimant believes that the core of the claim lays in what the defendant charges in it's terms and conditions in regards a default by the claimant are nothing more than a penalty charge and not a true estimate of cost then The claimant would request Fast Track save as to cost where the claimant would respectfully request that small claims court rules be applied as the Defendant is a large organisation and could afford to exercise more expenditure on this case than that of the claimant.

 

E Trial or final hearing

 

How long do you estimate the trial or final hearing will take?

 

0 days 1 hours 0 minutes

F Proposed directions (Parties should agree directions wherever possible)

 

Have you attached a list of the directions you think appropriate for the management of the claim? Yes

 

If Yes, have they been agreed with the other party(ies)?NO

 

G Costs

 

What is your estimate of your costs incurred to date?BLANK

 

What do you estimate your overall costs are likely to be?BLANK

 

Do not complete this section if you have suggested your case is suitable for the small claims track or you have suggested one of the other tracks and you do not have a solicitor acting for you.

 

In substantial cases these questions should be answered in compliance with CPR Part 43

 

H Other information

 

Have you attached documents to this questionnaire? Yes

 

Have you sent these documents to the other party(ies)? Yes

 

If Yes, when did they receive them? 2 days after posting this sent by recorded

 

Do you intend to make any applications in the immediate future? No

 

In the space below, set out any other information you consider will help the judge to manage the claim.

 

Section H

 

This issue is not a complicated one; it is an issue of fact and not of law. The issue is only whether the money levied by the Defendant in respect of its customer’s contractual breaches exceed their actual costs incurred. I am happy to pay their actual costs and I am surprised the Defendant did not counterclaim for these, because I would have paid them without argument.

As the banks have a fiduciary duty towards their customers, they have a duty to deal straightforwardly and in utmost good faith.

 

Though the actual amount that has been debited from the claimant is within the scope of a small claims court proceeding

The defendant to date has to the claimants knowledge never yet made an apperance at a court trial to defend it's charging regime rather to settle a few days prior to the case beginning thus wasting and abusing the courts time and resources in the Claimants opinion (see attached annex 1 for a list of claims settled ) without admitting liability or wrong doing prior to trial but after court action was commenced. Thus it is the claimants contention that the defendant will once again choose to settle prior to trial .

The claimant would respectfully ask the courts to study the defence filed by the defendant and form the view that no defence has been issued in regards this claim but a mere template form has been issued with the pertinent information filled in

To which end the Claimant believes that the defendant has not addressed these issues in their defence and as such no defence to the claim has been submitted and for the courts to make a ruling pursuant to CPR 3.4 para (2) sub-para (a) and (b)

• Cpr 3.4 Power to strike out a statement of case
  
• • In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

• • The court may strike out(GL) a statement of case if it appears to the court –
    • that the statement of case discloses no reasonable grounds for bringing or defending the claim;
      
    • that the statement of case is an abuse of the court’s process

and for summary sudgement pursuant to CPR 24.2 Paragrah (a) sub-para (ii) and Paragraph (b)

• CPR 24.2 Grounds for summary judgment
  
• The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

• • (a) it considers that –

• • • (i) that claimant has no real prospect of succeeding on the claim or issue; or

• • • (ii) that defendant has no real prospect of successfully defending the claim or issue; and

• • (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

If it should transpire that the claimant is wrong and the Defendant plans to pursue this matter to trial then the claimant contends that a fast track action will help bring a settlement faster to all the outstanding claims against the defendant by other individuals by setting a precedent. to which other claimants will be able to refer and hopefully free up the courts time and resources for more important matters.

Therefore the Claimant respectfully requests that this claim be allocated to the Fast Track for the reasons set out in Section D and above.

Notwithstanding allocation to the Fast Track, if the Court's direction is to allocate this claim to the Small Claims or Multi Tracks, the Claimant respectfully requests that a Small Claims Costs Order be made, and that directions as per

 

CPR 31.6 Standard disclosure – what documents are to be disclosed

· Standard disclosure requires a party to disclose only –

· (a) the documents on which he relies; and

· (b) the documents which –

o (i) adversely affect his own case;

o (ii) adversely affect another party’s case; or

o (iii) support another party’s case;

 

· © the documents which he is required to disclose by a relevant practice direction.

be ordered

 

The claimants response to the defendants defense

1. As specified in the Claimants POC the Claimant contends the defendant hasn’t addressed any part of the claimants allegations and contends the following
   
2. In respect of paragraph 2 it is agreed that 39378926 is the account which is in dispute
   
3. In respect of paragraph 3 of the defence without liability the claimant contends that if there was/is such a contract then the defendant would also be held accountable to the same terms of the contract if they were in breach of it’s conditions. Otherwise for the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the defendant) where there is no comparable term in favour of the other party (the claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).
    
   Regulation 5 (1) of the UTCCR states as follows:
    
   “Unfair Terms
   5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”
    
   Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract should provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank.
   
4. in respect of paragraphs 3 4 5 & 6 the Claimant maintains that due to the fact that the defendants charges in the terms and conditions are unenforceable by virtue of the unfair terms in consumer contracts Regulations (1999( paragraph 8 schedule 2(1) sub Paras (e)(i)(j)(q); also the unfair Contracts Terms act 1977 section 4 and the common law.That merly referring to the terms and conditions and not providing a true cost is no form of defence.
   
5. in Respect of paragraph 8 the claimant denies that the fees charged as per the defendants terms and conditions are a true cost and proportionate to the defendants administrative costs
   
6. With regards Paragraph 9 then the claimant contends that the interest he was charged whilst in default of the terms and condiotns if such a contract exsisted would more than compensate the defendant for the claimants breeches of the Account and as such should not be liable for any additional costing
   
7. in regards paragraph 10 of the defnce they deny the claimants application that they are entitled to interest at any rate.Well the claimant would contend that if such a contract as in 3 above did exsist then both partiers would be equally bound by it and as such then as per 3 above the claimant contends that the breach is that of unauthorised borrowing of the bank and as such is subject to the defendants rate of unauthorised borrowing being 28.7% compounded
   
8. in respect of paragraph 11 the claimant would argue that as the defendant has had the use of the claimants money without his permission then it would be logical to assume that the defendant would have used this money in it’s business therefore obtaining an enrichment

Additional notes Draft directions Attached after above

 

 

In the XXXXXX County Court

 

 

Claim number XXXXXX

 

 

Between

 

Newbody - Claimant

 

and

 

Abbey National Plc - Defendant

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

• e) A list of claim numbers settled prior to trial

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

• g) A list of all claims in respect of bank charges that it has pursued to conclusion in court by trial

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

Annex A

 

DEFENDANT CLAIM NUMBER AMOUNT DATE ISSUED SETTLED?

Abbey 4QZ2810928 £3,049.7 31 0/01/2006 YES

Abbey 7CI00170 £1,713.56 31/01/2007 YES

Abbey 6RG04466 £3,425.98 14/07/2006 YES

Abbey 5QZ30938 £1,729.48 04/03/2006 YES

Abbey 6CK02117 £10,235.37 13/06/2006 YES

Abbey 6CL01687 £3,219.00 02/05/2006 YES

Abbey 6DE02959 £3,992.44 19/04/2006 YES

Abbey 6DE04574 £3,582.94 09/06/2006 YES

Abbey 6HG03992 £9,825.84 20/09/2006 YES

Abbey 6PE02904 £5,011.03 14/06/2006 YES

Abbey 6PE04231 £1,5250 8/09/2006 YES

Abbey 6QZ08692 £479.74 8/02/2006 YES

Abbey 6QZ09627 £3,235.00 22/03/2006 YES

Abbey 6QZ18498 £3,080.27 21/03/2006 YES

Abbey 6QZ19764 £269.22 25/04/2006 YES

Abbey 6QZ21137 £4,872.00 30/03/2006 YES

Abbey 6QZ23148 £244.37 10/04/2006 YES

Abbey 6QZ30791 £1,062.00 12/05/2006 YES

Abbey 6QZ32624 £232.00 15/06/2006 YES

Abbey 6QZ39038 £1,465.42 15/06/2006 YES

Abbey 6IG03529 £4,309.15 26/09/2006 YES

Abbey 6QZ41854 £3,349.90 YES

Abbey 6QZ43864 £1,754.00 YES

Abbey 6QZ48201 £1,376.26 20/07/2006 YES

Abbey 6QZ67803 £110.38 28/09/2006 YES

Abbey 6QZ71927 £1,147.13 YES

Abbey 7QZ09584 £2,145.43 25/01/2007 YES

Abbey 6SL00583 22/02/2006 YES

Abbey 6SO05338 £2,245.00 28/07/2006 YES

Abbey MMCK/KPSA1262/05 £228.00 02/12/2005 YES

Abbey SA202/06 £618.00 18/03/2006 YES

Abbey 6SY01327 £917.83 01/12/2006 YES

Abbey 6TQ01886 £2,912.00 04/09/2006 YES

Abbey 6QZ73062 £1,493.13 12/10/2006 YES

Abbey 6QZ93002 £609.84 12/12/2006 YES

Abbey 7QZ32441 £424.70 13/03/2007 YES

 

Annex B

 

Further schedule of charges at 28.7%

[newbody]

Bump

[TUTTSI]

Hi Newbody, sorry cannot help you, as not that legally minded, but I jhope that someone comes on soon to help. Have you asked for GaryH to help he is an expert on AQ, he has been amazing and has helped me loads. I will see if I can find you his link and get back to you.

Where did you get all the case no's from and the settled amounts and are thes only from your court!

DS

[TUTTSI]

New strategy for Allocation Questionnaires can be found in the General forum, they are all very very helpfull over there.

DS

[newbody]

settled cases are here Dsilverstein http://www.consumeractiongroup.co.uk/forum/general/64871-spreadsheet-claims.html?highlight=settled+cases

[TUTTSI]

Thanks