County court Judgment and bank charge reclaiming - help needed!!

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

Yes it is all very frustrating!! No where near a scarey this time, We just want to get this whole mess sorted. What should I do about my bank charge reclaiming now, as they refused that we were in hardship, should I just wait for the test case or report to FOS?

What about the the fee that I paid to the court for a "Stay" when I didnt get one, can I claim it back?

[Glenn UK]

I suspect that NW can chase both parties for the full amount on the basis that if its a joint account you are probably both liable for the whole of the debt IE jointly and severally liable i think they call it.

The mechanism for actually enforcing the debt may be incorrect on their part IE instructing two solicitors in different claims but if i am right then its a procedural matter which the court will no doubt accept. Even if it means that NW have to wriggle a bit to get it sorted.

Personally i would counter claim for the charges and interest. At the moment apart from the doubt over the procedural matters it seems to me that NW are likely to get a charging order, whether its fair or not is immaterial, it seems to be the way life goes in court.

In my view if you counter claim and the difference between your claim and theirs is small or favourable to you then there is every reason for the court to dismiss their attempt at a charging order.

Assuming we are talking bank charges here and given that the charges have been deemed subject to a test of unfairness by a higher court, then any attempt by the bank to force a charging order stands a good chance of a)getting stayed or b)thrown right out until the higher court has formalised the unfairness of the charges.

Also the uncertainty currently over what is and isn't a fair level should work in your favour because only a court can decide on each given case what is fair.

Logically if claims against a bank are stayed pending the outcome of the high court decisions and the oft fairness claims then there is no real reason why a court should refuse the claimant the same facility if they have a counter claim for the return of bank charges whihc currently have been judged subject to the test of fairness.

JMHO

Glenn

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

One charging order isn't a problem, we needed to make sure the property didn't end up with two at £12k rather than one at £6k - now the judge has accepted both claims are the same thats virtually sorted. The shoosmiths CCJ needs setting aside too.

See what comes back from Natwest following the letter, but hopefully the shoosmiths claim will be cancelled, and in the meantime can start sorting out the counterclaim for the chargesagainst natwest on the irwin mitchell claim . We have all the paperwork for that so will go through soon as I get chance.

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

Hi, just in from work, thanks for everyones input!! Ame you are a little treasure, when ever you are ready is fine. Thank you again!! xx

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

Hows things Ruby ? Do we need to get a wiggle on with this counterclaim ?

Hope you are well and had a lovely Christmas. xx

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

Hi Amethyst, Sorry not been on here much due to Christmas, gave myself a little break from things. Had a lovely Christmas thankyou and I hope you did too.
I have received a couple of letters which i will send to you in a bit and I am now all ready to begin the fight again with your help of course!!!!:reindeer::grinningelf:

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

Great stuff, look forward to reading them

Glad you had a nice break, is good to shut your head off for a while.

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

Hi ame, I have emailed the letters to you now. Let me know what you think.
Kind regards
Ruby

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

Hey xx

The General Order is fine, means both cases will be looked at together and should mean you only get the one charging order from Natwest.

Be interesting to see Natwests reply to the other letter after they have 'investigated it fully'.

we want to get one of the CCJs cancelled, which should happen now they have been linked, and the counterclaim in against the one we're not cancelling before the charge is placed.

will come back a bit later xx

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

Thanks again!!

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

Questions for whomever knows the answers;

How do you enter a counterclaim on a CCJ that is already judged on, being paid by installment and pending a charging order - is it standard counterclaim process or do you need to set it aside first ? My first thought is a N244 application to ask for set aside and permission to enter a counterclaim and include the counterclaim with the form for when they agree.

We'll concentrate on the irwin mitchell claim and for the moment assume the shoosmiths one as it came second is the one that will be struck out.

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

" BUMP "

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

"Bumping again"

[Amethyst]

Re: County court Judgment and bank charge reclaiming - help needed!!

hi honey x

Just popping this here to work on. This is a counterclaim Tools used when YB claimed against him dispite charges being involved in the default balance. It hadn't gone to judgement yet tho so we need to amend some bits (and to the right info) and add in hardship elements for you. Then we can do an N244 and do the application to apply it to the already passed CCJ before they get a charge order. Will really try and work on this this evening for you and get all your info up on the thread

COUNTERCLAIM

1.The Defendant had/has bank accounts, numbers xxxxxxxxxxxxx and xxxxxxxxxxx hereinafter referred to as “the Accounts”, maintained at the xxxxxxxxxxxx branch of the Claimant (Sort code xxxxxxxxxx).

2.The Accounts are governed by the Claimants Standard Terms and Conditions, hereinafter referred to as “the contract/s”.

3.Throughout the Defendants banking relationship with the Claimant, numerous charges have been debited from the Accounts in respect of breaches of contract on the part of the Defendant and also charged debit interest on the charges once they had been applied to the Accounts.

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

5.A schedule of these charges for each account is attached to these particulars of claim (Appendix 3a).

6. In support of this claim the Defendant contends that:

a. the Charges are punitive in nature and generally disproportionate using evidence such as the Claimants own research namely a study carried out entitled CYNtheSYS and not a genuine pre-estimate of loss incurred by the Claimant in respect of any alleged breaches of contract on the part of the Defendant , but instead unduly enrich the Claimant which conducts its regime of charging with a view to profit.

b The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of:
i. the Unfair Terms in Consumer Contracts Regulations (1999)
ii. the Unfair Contract Terms Act 1977
iii. the Supply of Goods and Services Act 1982; and
iv. the common law; and

c. the processes involved in processing unauthorised overdrafts, unpaid items, debit under advice, unpaid cheques and direct debits, etc are entirely, or else almost entirely, automated with little or no manual intervention.

7.The Defendant makes reference to the following cases,in support of his case;
a. Dunlop Pneumatic Tyre Co. v. New Garages and Motor Co. AC 79;
b. Lordsvale Finance PLC v. Bank of Zambia QB 752
c. Murray v. Leisureplay EWCA Civ 963;
d. Bridge v. Campbell Discount Co. LtLL AC 600
e. Alfred McAlpine Capital Projects Ltd v Tilebox Ltd EWE-Information Commissioner 281 (TCC)
f. Commissioner of Public Works v Hills AC 368

8. Additionally, the Defendant makes reference to the following Office of Fair Trading cases, as reported in their Unfair Contract Terms Bulletin (21 July to September 2002). as persuasive authorities:
a. Case 4 - Dampcure-Woodcure/30Ltd
b. Case 15 - Kids of Wilmslow Ltd t/a kidsunlimited
c. Case 18 - Legal & General Franchising Ltd t/a Parkers Estate Agents

9: The Defendant will also make reference to the Claimants own statements, published in public documents, that the fees charged are a penalty and a source of income.


10. The Defendant deems the Claimants indebtedness to the Defendant to be unauthorised as the debt is made up of unlawful penalty charges. If the Claimant avers that these charges are proportionate, reasonable and fair, then the Claimant should reasonably be able to defend this claim by disclosing evidence of the Claimants actual losses in relation to contractual breaches by the Defendant.

12.Accordingly the Defendant claims:

(a)The return of the amounts debited between xxthSeptember 1988 and xxthaugust 2007 in respect of charges, a sum of £1xxx.xx + £6xx.xx
(b)All applicable court fees
(c)Interest under s.69 County Courts Act 1984 at the rate of 8% per year from the date of each transaction to XXXXXX 2007 of £XXXX, and also interest at the same rate up to the date of judgement or earlier payment settlement.

13. The Defendant reserves the right to further plead these particulars.

Statement of Truth


The Defendant believes that the contents of these particulars of claim are true___

[ruby15]

Re: County court Judgment and bank charge reclaiming - help needed!!

OK Ame, many thanks!