Battle with Abbey

[GaryH]

Ok, no probs. I'll be here for the next half hour or so, if I don't catch you by then it'll first thing in the morning.

[Boris Becca]

Good a.m O>K Almost done now ,am stuck on no.11 subject access request and response, not sure what this is. PLease help, Gary I am getting so nervous I ought to start brushing up on what to say and do in court, can you give me some stuff! Been reading Marmite Girl, will be watching closely today. Is there anyone that could possibly come with me, that you know of?

[Boris Becca]

would also like to go through my witness statement, havnt yet put page and exhibite numbers in untill I do so. then gonna get two printed off at shop tomoz and handn deliver to my court monday a.m and special del to Abbey. Should I at all hav anything in the bundle relating to money used for paying charges taken from goverment money: benifits. I Know this has been mentioned dare I say it by martin lewis on his last E mail news letter. would it help???

[Boris Becca]

sorry Gary to bombard you!!

[Boris Becca]

Can you enlighten me to the terms and conditions I should have. Thanks so much

[Boris Becca]

O.k Bundle done! not my favorite past time! only thing I dont know and cant find it on my poc is the on going dailyrate for interest. If poss could you let me know to write it on on witness statement before midday? also part 27 on w.statement dont understand the clause part, last bit I promise!!

[GaryH]

For the daily rate, just multiply the total amount in charges x 0.00022.

 

Para 27 change to "It is submitted that the clause of the account agreement which permits the bank to levy charges amounts to an unfair term......"

 

Sorted?

[Boris Becca]

So this gives me a figure not including the previous calculated intrerest of £2.88024............is that " 2 nearly 3 pounds a day? yae otherwise sorted!

[Lula]

sounds about right Becca, you go girl, not far now

[Boris Becca]

Yippee, got the bundles off, hand delivered to court and a special for clare and Inga, if there still dealing with things? Now to learn witness sttement and find out more about hardship cases going ahead I think ready for them trying to have it stayed. Do Abbey have to provide me with a bundle too as well as the court?

[Lula]

oh yes indeedy

and if they dont cough them up then they are in breach of a court order and you can have their defence thrown out LOL

 

 

p.s. they havnt submitted a bundle yet!!

[Boris Becca]

no they havnt court date is 29th so wed 15th is 14 days, expecting a thump on my door mat tomorrow!! how soon can i apply then to act if they dont comply?

[Lula]

straight away Becca Ring the court first though and see if they have filed - highly unlikely though

[Boris Becca]

Filed what, a court stay or bundle, Sorry ,I know they havnt applied for a stay yet, I am expecting that on the day, like marmite girl, hence the hardship and benefit emphases. Can they file a bundle to court and not me then? Regardless I will call courts first thing in a.m. so if they havnt i can do something about it on thurs or to eager?

[Boris Becca]

I will go to bed soon and prey for NO BUNDLES!

[Boris Becca]

up and waiting, no bundle yet, will wait till 9 and call the courts , obviously, cool, calm and collected. NOT!

[poppynurse]

When my bundle didn't arrive (due on 4th August) I left it 7 days then rang court to check, they hadn't got it so I wrote to judge and asked for judgement by default for abbey failing to comply with court directions, am now waiting to hear from court but I expect I will have to attend the hearing on Monday (20th).

[Boris Becca]

Yes, I have just called the court and they said the hearing will go ahead anyway, regardless of Abbey sending in Bundle or not, that seems so unfair, I ueiw of the oft scenario the banks seem unfairly ,in my veiw to have even more clout at the moment. How am I supposed to read up on what theie gonna use in court against me. saying that they will probably only go in to have the case stayed! Oh well getting used to the feeling of the roller coaster ride now, sickening!

[Boris Becca]

O>K I have been reading up and obviously shabbeys tactics are not se=nding bundles and then applying for and being granted stays on the day. More than likley same will happen to me nexy wednesday. However, I reallt want to work on that its coasing great hardship and the fact that it is benifir money. Also need the SET ASIDE of a stay stuff please. PLEASE PLEASE, can anyone help look into this so we MAYbe able to set A PRESIDANT .

[GaryH]

Here you go Becca -

 

http://www.consumeractiongroup.co.uk/forum/cases-stayed-pending-oft/108430-stays-info-guidance.html

 

At the very top of the objections you should add something like this -

Complexity of the Issues

 

The complexity or otherwise of the legalities arising from the bank charges issue should be viewed in context.

 

The test case between the banks and the OFT is essentially to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999.

 

The fundamental issue to be tested is whether the contractual provisions permitting such charges fall within the ambit of regulation 5 and are thus subject to an assessment of fairness, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a core term or that they relate to the adequacy of the price or remuneration, as against the goods or services supplied in exchange. This is a complex issue of legal interpretation and should be viewed against the background of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms.

 

There are no such complex issues in the present case. This claim is not primarily based upon regulation 5 of the UTCCR, and indeed the claimant is prepared to drop that aspect from her claim. The basis of this claim is that the charges imposed arise directly from breaches of contract. This can easily be demonstrated by the existence of terms in the account contract which expressly prohibit the making of any payment without sufficient funds to cover it.

 

The charges were thus payable upon clear breach of contract, as stated by the defendant in its own defence, and are therefore subject to the long settled principles of common law relating to contractual penalty clauses. The issue therefore is a simple one of fact – specifically whether the actual cost to the bank of the breach is proportionate to the charges it imposes.

 

The claimant submits that it is wholly innapropriate and unnecessary to stay a claim at such a late stage in proceedings which can be easily and routinely disposed of by the County Court.

 

In view of the above, if the court is not minded to proceed today, the claimant respectfully suggests that these proceedings may be adjourned for one month and an order made simular to the draft attached. If the defendant cannot/will not comply with such an order then the defence should be struck out as having no realistic prospect of success.

 

Defendant's Conduct

 

The Defendant has repeatedy refused to contest all claims simular to the present for "commercial" or "costs" reasons, yet it now sends a barrister to each hearing solely to argue for a stay. Furthermore the defendant is likely to attend this hearing having breached the order for pre-hearing directions, without instructions to defend the claim, instead relying solely on the court granting a stay. The claimant submits that this is presumptuous and displays the arrogant and disrespectful attitude towards court orders and procedure in general which is entirely typical of the defendant's conduct in these procedings to date.

You can also add any personal circumstances to the additional points section.

 

Attach this as well -

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

 

 

Between

 

 

XXXXXXXX - Claimant

 

 

and

 

 

 

XXXXX - Defendant

 

 

 

 

 

Draft Order for Directions

 

 

 

 

1. The Defendant shall within [14 days] file and serve a response to the Claimant's witness statement and schedule of charges, stating in respect of each item claimed;

• a) Whether such charge is accepted to be a penalty, and if not why not;
  
• b) Whether the defendant's admistrative expenses as referred to in its defence are incurred as a result of manual or automated administration or otherwise;
  
• c) As such charge is alleged to be a genuine pre-estimate of the Defendant's loss incurred by the Claimant's actions, 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) Copies of decided cases and other legal materials to be relied upon.

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

 

2. Upon compliance with paragraph 1, the small claims hearing will proceed to be heard at [time] on [date] at Tunbridge Wells County Court.

Sorry, you'll need to spellcheck it all!

[Boris Becca]

Thaks Gary, do I just take this with me or print and send off. I am getting so scared now. Do you know if anyone can come with me? i AM SCARED i AM NOT gonna know what to say and look ridiculous against a barrister. What is the general feedback at the mo? Are most cases being stayed. do yoyu know aany who have won on here?

[Clippy]

Sorry to Hijack but I need to ask GaryH. The draft on #170 Is that something that you take with you on the day incase they ask for a stay or do you post it off before the court date? sorry to hijack again. Just realised BB asked the same thing. DOH!

[GaryH]

Thaks Gary, do I just take this with me or print and send off. I am getting so scared now. Do you know if anyone can come with me? i AM SCARED i AM NOT gonna know what to say and look ridiculous against a barrister. What is the general feedback at the mo? Are most cases being stayed. do yoyu know aany who have won on here?

Have a read of PSM's thread. I'm also in the middle of writing a sticky, so keep your eye out for it. Still trying to find you a buddy - watch this space.

[GaryH]

Sorry to Hijack but I need to ask GaryH. The draft on #170 Is that something that you take with you on the day incase they ask for a stay or do you post it off before the court date? sorry to hijack again. Just realised BB asked the same thing. DOH!

To take with you. Its an amended version of the usual draft directions order. It ties in with the section I just posted (#170) for inclusion in the stay template.

[Clippy]

Just read your email GaryH. Thankyou. thick question coming up, Do I print off the original plus the above link and take it all with me? I understand there is a 35 pound fee involved.