askl - Natwest

[natweststaffmember]

Re: aski - Natwest

Hiya,

Thanks for taking a look.

The columns are different forms of charge; the first two are the most important; returned cheque fees and unauthorised borrowings - the last is the misc. column.

----


In the witness statement I was considering including details to illustrate the penal nature of bounced cheques.
For instance a payment which bounced 6 times from 1 March 2001 to 2 May 2001 - costing me £30 x 6 + interest .
I have all the notificants for evidence.

Have you included miscellaneous in your figures?

[askl]

Re: aski - Natwest

Hi,

I only include penalty fees and interest in my defence.

However NatWest's alternative claim is minus all charges including misc. charges (they are comparatively small - only represent £153.55, mainly account referral fees charged after the Company ceased trading - when there were no transactions).

[Dougal16T]

Re: aski - Natwest

Amethyst,

I've email the spreadsheet.

The Claimant has in its WE ARE THE LAW fashion, told me that if I wish to rely on any evidence in responce to the application, to file and serve such written evidence at least 7 days prior to the hearing pursant to Part 24.5 (1) - which is on 7 July - meaning I should theoretically send evidence by 30 June - Tuesday.

Yet I have not received any notification from the Court that a) they plan to include the Claimant's Applicant in the hearing, b) that I should respond with a witness statement at least 7 days before the hearing date. Indeed they don't know whether or not the Claimant has sent me the Applicant and Witness Statements or not.


Shoosmiths has in the past faked an Application for Summary Judgement (sent me a copy but not a copy to the court), pesumably in an attempt to get me to settle - it was over 2 years ago.

Good morning,

FAKED a summary judgement.....well now this looks like a two headed sword in your armoury. If you still have the papers to prove.....

1. This is an absolute Criminal offence under the Fraud Act 2006 , and despite the elapse of time, can now be reported to the police and Shoosmiths dealt with accordingly.

2. This is also a solid case for the perpetrator of this act to be struck off the Solicitors Roll, and application to the Solicitors Regulation Authority should achieve just that. (bearing in mind that the Partners at Shoosmiths are also liable for their employees actions!!). Your claim for damages for stress, inconvenience and the like must surely follow, against Shoosmiths.

Typical Natwest...a complete shambles.....!

Kind regards

Dougal

p.s. apologies for butting in, but I just can't sit on the fence whilst these people do what they like without regard for the law!

[askl]

Re: aski - Natwest

Hi,

From memory Smoothsmith sent me a draft court order for summary judgement 2 years ago, which they did not send to the court.

[Amethyst]

Re: aski - Natwest

is the misc colum interest charged each month ?

[Guest]

Re: askl - Natwest

You have done the right thing. You have an order that states that if Nat West do not comply and provide a breakdown of their charges (as per your post #14) then their claim will be stayed.

Since they have not done this, regardless of any last minute applications they may make, I fail to see what else the court can do.

Irrespective of their attempt to invoke clause b, they have still failed to comply with a court order. It would appear that they are bluffing and expect you to fold.

[askl]

Re: askl - Natwest

Cetelco,

Hi, thanks. I'm still unsure whether to provide a witness statement, which according to Shoosmiths is by tomorrow - or should I wait until ordered to by the court - according to the court they did receive the witness statement, and I'm due to receive something from the court later in the week relating to the claimant's application for summary judgement.

My thoughts are;
If NatWest's claim is struck-out, then I can lick my wounds and walk away, or go for compensation - if so I will need a witness statement.
If NatWest's claim is not struck, then frankly I'd prefer to get this sorry tale resolved next tuesday (given they double the claim roughly every two years).

So prehaps I need a witness statement anyway - I can't see the downside...

Any input from anyone?

[askl]

Re: askl - Natwest

Draft 2 of my Witness Statement - help gratefully accepted - note I realise the numbering is probably all wrong.

WITNESS STATEMENT of XXXXXXXXX

1. I, XXXXXXXXXX am the defendant in this action and make this statement in opposition to the Claimant Claim.
Background to Proceedings
2. On 28th January 2009 sitting at Lambeth County Court, Deputy District Judge Emanuel made an order which the Claimant has failed to comply with.
"The Claimant shall provide answers to the following by 4pm 28 February 2009;
the method of calculation, or breakdown that give rise to the Cheque Return Fees being claimed in the £30 per item,
the method of calculation, or breakdown that give rise to the sum claimed against the defendant as Excess Borrowing."

3. In paragraph 22 to its Claim dated 15 June 2009, the Claimant wilfully omits part of the Court Order of 28 January 2009. Stating that it is unable to provide any further breakdown. The only logical conclusion for the Claimant refusing to answer the Court Order is that the costs of administering returned cheques and overdrawn accounts are considerably less that the amount being charged.

4. If the fees being Claimed exceed the cost to the Claimant they would be penalties and unenforceable under common law as established in Dunlop Pneumatic v New Garage [1915] AC 79 along with Murray v. Leisure play [2005] EWCA Civ 963.

Background to the Claim
5. I owned and directed XXXXXXXXXX (the "Company"). The Company entered into a banking relationship with the Claimant in 1999. In 2000 I personally invested £90,000 in the Company, money I put in the Company’s account held by the Claimant.

6. I entered into two bank guarantees in 2001 with a cumulative total of £33,000. A copy of each guarantee is attached on page 1 and 6 to this statement. On page 2 paragraph 4 to the guarantee it state “This Guarantee shall be additional to any other guarantee or security now or hereafter held in respect of the liabilities hereby secured”.

7. The clear agreement with the Claimant and the sole reason for me agreeing the additional guarantee of £19,000 when the bank account was already more than £19,000 overdrawn was that it was in consideration for the banking facilities for £33,000. And that this total banking facility equivalent to the total guaranteed would last for the duration of the guarantee. The Claimant has failed to mention the existence of the second guarantee although I have received correspondence from the bank in connection with it see attachment page 7. This omission, despite my repeatedly telling them about it, suggests the Claimant acknowledges that it should have provided the facility for the full guarantee.

8. In 2001 the Company returned a profit and paid a positive cashflow of £17,033 into the account held at the Claimant, thereby repaying all monies owed to the Claimant. But for the disputed bank charges and disputed interest the bank account would have been positive, in favour of the Company when trading ceased in 2001. I attach on page 8 to this statement the total indebtedness according to the Claimant and that same indebtedness excluding the disputed bank charges and interest.

9. Had it not been for the Claimant’s excessive charges and treating the account as over its limits when it was not, the Company would have continued to trade, providing me with an income of at least £16,000 per year.

The Claim
10. The claim results from a dispute with the Claimant over its treatment of about 30 returned cheques in 2000 and 2001. My position was and remains that the Claimant should not have treated the account as over its limit because there was a guarantee in place. Furthermore the amount charged was punitive in relation to the cost to the bank.

11. The net amount of bank charges in dispute at the end of 2001 after the Company ceased trading, was £5,711.75 see attachment 8. This is a significant sum, but manageable had I agreed to the Claimant’s demands in 2001.

12. Since 2001 the Claimant has applied interest to this disputed sum at a penalty interest rate of up to 33% see attachment page 9 to this statement. The bank charges in dispute has increased rapidly thus being inflated from the disputed £5,711 in 2001 to £17,141 in 2007 when this Claim started see attachment 9.

13. Furthermore according to the Claimant’s Witness Statement the only relevant open account in 2007, shows a balance of £17,141 in January 2007, see page 11 to the Claimant’s witness statement. This amount bears no relationship to the £28,551 being Claimed.

Defence
14. The Claimant makes no mention in its Witness Statement of the £28,551 being Claimed and none of the attached pages equates to the amount being claimed.

15. The Claimant should not have charged bank overdraft charges when the overdraft was well within facility limits.

16. The Claimant charged the Company and now is charging me through this claim for overdraft fees that appear to be excessive in relation to the claimant’s costs. By way of example on attachment pages xx the claimant returns the same cheque 6 times between 1 March 2001 and 2 May 2001 charging me £180 for the same cheque. On each occasion is says “As dealing with unpaid cheques means extra administrative work, I have charged a fee of £30.00 to your account to cover these costs. In contrast a customer requested stopped cheque, where there is in fact a fee for a service and greater bank administration time, the Claimant only charges £7.

17. On page xx the Claimant charges £120 to return two cheques that would surely take no longer to process than 1 cheque.


18. The Claimant in Paragraph 26 to its witness statement offers an alternative claim excluding charges it then attaches on pages 32 and 33 to its statement.

19. The Claimant appears to be conceding that £1,151.55 of the disputed charges from March 2001 to December 2003 may be unlawful.

20. However attached schedule on pages 32 and 33 inexplicably fails to include charges before March 2001 of £2,493. See attached schedule to this statement page 12.

21. Furthermore it understates the amount charged from March 2001 by £132.50.

22. Furthermore the Claimant fails to take into account the interest it charges at 29.5% which together with the disputed bank charges comes to comes to xxxx see attachment to this statement on page 12.

23. Further I dispute the interest the Claimant applied to the account being claimed of 32.4% per annum as it was not the contractual rate agreed. See attached schedule where it can easily be seen that interest for the year to 30 September 2003 was £2,827.26 divided by a starting balance of £8,715.34. The results in a rate of 32.4% pa.

Counterclaim

24. I counterclaim for loss of my personal earnings of £16,000 for a year from 2001. A schedule of my income in 2002 is on page 9 to this witness statement.

25. Furthermore consideration should be given for the stress caused by the bank bouncing cheques when a facility was in place, pursuing me for unlawful penalty fees which it increased at 32.4% per annum and using a debt collection agency which contacted friends, neighbours and my parents. And lastly for sending me personal data for another customer living a short distance from my parents, see page to this statement for which I concluded that another customer must be in possession of the personal data that the claimant meant to send me.
STATEMENT OF TRUTH
I believe the facts as stated in these Particulars of Defence and Counterclaim are true.


xxxxxxxxx
Dated 30 June 2009

[Guest]

Re: askl - Natwest

Nobody ever lost a case because they provided too much information.

Regarding the above, you cannot know why the bank have not provided the information, you can only speculate and in your point 3 you state it is because "the costs of administering returned cheques and overdrawn accounts are considerably less that the amount being charged."

That may be true, but is not the reason the bank have not provided a breakdown. The reason they have not is because they do not want to reveal their costs or a breakdown of how they may arrive at them, irrespective of what they are. You must deal in facts, not speculation or opinion.

The fact is, the Claimants have defied a Court Order and such defiance must lead to their claim being struck out, which is plain to see and therefore, you invite the court to exercise its power, as previously ordered and strike out the claim.

Although, you do not appear to have it in writing that their claim will be struck out, only that it will be stayed. Do you have an Order that states it will be struck out should they fail to comply?

[WendyB]

Re: askl - Natwest

Point 22. Not sure if this is the method they use to claculate the interest, or that you can work it backwards the way you have to arrive at the interest figure. Because you have to remember that the interest adds up daily etc, then compounds on itself etc etc, so although 2827.26 divided by 8715.34 does indeed equate to 32.44%, I'm not entirely sure that you would be correct inquoting this as the interest rate used. That calculationis basically expressing one as a percentage of the other, in simple terms.
JMO

[askl]

Re: askl - Natwest

Thanks everyone. I have now updated and sent off the witness statement. I'm sure I could have improved it significantly, and there's plenty more evidence but it is extremely time consuming and I ran out of time - besides work and family need me. Cetelco I took your advice...

[askl]

Re: askl - Natwest

Point 22. Not sure if this is the method they use to claculate the interest, or that you can work it backwards the way you have to arrive at the interest figure. Because you have to remember that the interest adds up daily etc, then compounds on itself etc etc, so although 2827.26 divided by 8715.34 does indeed equate to 32.44%, I'm not entirely sure that you would be correct inquoting this as the interest rate used. That calculationis basically expressing one as a percentage of the other, in simple terms.
JMO

Thanks, it's a personal bugbear and a debate which I'm happy to contribute to after my case next week - if there is interest.
In reality banks probably make more from the penalty interest than they make from the penalty charges themselves.
The use of 29.5% is beyond excessive, but to compound that they actually are applying an APR of 32.44%.

[askl]

Re: askl - Natwest

Update. The court is only hearing my application to strike out NatWest's claim - on Tuesday. NatWest's application will be heard in October.

Can anyone advise me of what would be the possible outcomes, if NatWest is found not to have complied with the court order to supply a breakdown their costs resulting in the £30 being charged to me for administering a cheque (which they haven't even after 3 orders over more than one year.)

I presume the court will have to use the only sanction left, to strike the Claim out.

Could they then bring a replacement claim?
Could they appeal the decision?
And what about my counterclaim?...

[Amethyst]

Re: askl - Natwest

Well the order, unfortunately, didn't have a consequence attached to compliance. So hard to say.

If this is the full wording of the order

1) The Claim shall be stayed pending;
a) resolution of the OFT/Abbey Litigation, or,
b) upon the Claimant's application that the foregoing litigation is not relevant to this claim,
2) Subject to Paragraph (1) permission to either party to lift the stay or seek further directions.
3) The Claimant shall serve in writing in upon the defendant's answer to the following by 4pm on 28th February 2009;
a) the method of calculation, or the break-down, that gives rise to "cheque return fees" being claimed in the sum of £30.00 per item;
b) the method of calculation, or the break-down, that gives rise to the sums claimed against the defendant as "excess borrowing"."

as Cetelco stated on your witness statement ''Although, you do not appear to have it in writing that their claim will be struck out, only that it will be stayed. Do you have an Order that states it will be struck out should they fail to comply?''

So I guess your strike out application covers that as part 2 of the order - Natwest have asked it not to be stayed as the OFT litigation is irrelevant (although they havent stated why although its most likely based on the penalty judgment readover that isnt being appealled), so they can;t hide behind that, but then neither can you (unless you want to bring it back into play eg that the house of lords looks like it may reconsider that judgment ) so you are left asking for strike out purely on their faliure to submit their costs of bouncing cheques, so as you said previously their position seems quite weak on that

The Claimant's Position
23. The Claimant is unable to provide any further breakdown in relation to charges other than what had already been supplied. This has been made clear to the Defendant. [NatWest have only provide a list of items to date, not the calculation or break-down of the £30 charge itself - the Judge became quite angry with NatWest's barrister sent to the January hearing for saying that a list of charges was sufficient, although the Judge accepted the original wording was not as clear as it could have been - that is why the Judge rephrased it and ordered NatWest to provide it by February - and why we are having our hearing on 7 July.]

So that is basically the argument for this hearing.

I think reading through the thread again I would have bought up the previous fake summary judgment to illustrate shoosmiths attempt to abuse due process. Also them failing to mention the second guarantee and overdraft (which you have written evidence of)

I, in all honesty, can't see your counterclaim suceeding, although I can see the claim by Natwest being struck out for thrice refusing to answer the courts order and you being awarded costs (so hope you have a schedule for LIP costs worked out).

Other thing you might want to be ready to counter is the comments made in the house of lords hearing that the banks said yes the fees may be excessive they are 'an income stream' and 'cross-subsidise' other parts of current account provision and not related to costs and make part of a price. ie. the level of charge is a competition issue rather than a contractual one so they could set price as they wish and it doesnt have to relate to cost just be in line with market forces (my understanding anyway) but they havent bought that up at all in their WS so I wouldnt worry I just think too much. Anyway if they do try arguing that then it becomes relevant to the oft litigation and you could go back for a stay if Judgey doesn't look like striking out because of their complete ineptitude at complying with court orders.

Otherwise nope don't have a clue lol.

What have natwest applied for thats being heard in october ? (I presume unless this is struck out in which case I also presume they will appeal)

[askl]

Re: askl - Natwest

Thanks, very comprehensive and very clear advice.