askl - Natwest

[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,

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).

[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

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.

[Amethyst]

Re: aski - Natwest

can you explain the three columnns on the spready under 'bank penalty fees' heading pls, ta

[Amethyst]

Re: aski - Natwest

Thank you for that. have received your email

Have you contacted the court to find out what they have/haven't received ?

[askl]

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" a draft Application for Summary Judgement (that is sent me a copy but not a copy to the court), pesumably in an attempt to get me to settle - this is my recollection from over 2 years ago.

[askl]

Re: aski - Natwest

Amethyst,

Thanks. There appears to be no other obvious other explanation for removing the bank charges, other than because they are penalties.

NatWest still haven't understood that if you remove the bank charges, then you have to remove the interest on the charges, which leaves a £0 claim.

[Amethyst]

Re: aski - Natwest

okay can you email it to me - admin@legalbeagles.info

think the WS does need some work if you don't mind hanging on a couple days.



this bit - They have only just remove the amount from the claim - presumably following Justice Andrew Smith in Jan '09.

is just just you surmissing or have they entered any docs to court stating they have removed that amount from the claim/changed the amount accordingly etc?

[askl]

Re: aski - Natwest

Okay.

have you got the spreadsheet you used to calculate the interest charged on the £1551 (2001 charges) ?

at what point did the claimants remove that amount from the claim ? is it included in the October amendments to the POC ?



I'm not sure you personally have any counterclaim against the bank legally - have you taken any advice on this?

I have a spread sheet - which I can email. The £10k is a rounded figure.

I have used the marginal effective rate used by NatWest of 33% (which I have separately calculated), and calculated a Present Value from the date of each charge up to the claim date. The calculation is PV=Value*((1+EffectiveRate)^((ClaimDate-Date)/365)) .

---

They have only just remove the amount from the claim - presumably following Justice Andrew Smith in Jan '09.

---

You may be right about the loss of earnings. However it is genuine loss, besides the stress they have caused goes way beyond this actual loss. I would have agreed to pay the penalties at the beginning if I had known how stressful this whole business would have been to me and loved ones. It is beyond belief the way they have acted, to me and others including the OFT etc, as if above the law.

[askl]

Re: aski - Natwest

Thanks Amethyst. I hadn't noticed that this is a Witness Statement not an amended claim. Anyway here is my first draft......... Note their Claim overstates the account by £11,000 - so I guess they're off to a bad start.
WITNESS STATEMENT of XXXXXXXXX

1. I, XXXXXXXXXX am the defendant in this action and make this statement in opposition to the Claimant's Application to strike out my defence in a Summary Judgement.

Background
2. I owned and directed XXXXXXXXXX (the "Company"). I entered into a banking relationship with the Claimant in 1999. In 2000 I personally invested £87,000 in the Company, money I put in the Company’s account held by the Claimant. Attached is the net balance of all the Claimant held bank accounts for each transaction from 1999 to 2001.

3. I entered into two bank guarantees in 2001 totalling £33,000. A copy is attached. The clear agreement with the Claimant and the sole reason for me agreeing to guarantee the account was in consideration for the Claimant providing the Company with total banking facilities equivalent to the total guaranteed and for the duration of the guarantee.

4. 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.

5. 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
6. 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.

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

8. Since 2001 the Claimant has applied interest to this disputed sum at a penalty interest rate of up to 33%. The amount in dispute has increased rapidly thus being inflated from the disputed £5,711 in 2001 to £17,141 in 2007 when this Claim started.

9. Furthermore according to the Claimant’s Witness Statement the only open account in 2007, shows a balance of £17,141. This amount bears no relationship to the £28,551 being Claimed. Statements for the account are attached on pages 7 to 13 of the Claimant’s Witness Statement.

Background to Proceedings
10. 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."

11. In paragraph 22 to its Witness Statement, 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.

12. 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.

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

14. The Claimant in Paragraph 26 to its witness statement offers an alternative claim excluding charges. It lists these charges on pages 32 and 33 to its statement.

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

16. However its attached schedule on pages 32 and 33 inexplicably fails to include charges before March 2001 of £2,493. See my attached schedule.

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

18. Furthermore the Claimant fails to take into account the interest it charges which together with the disputed bank charges, accounts for the whole amount being claimed.

19. Further I dispute the interest rate applied of up to 33% as it was not the contractual rate agreed. See attached schedule.

Counterclaim

20. I counterclaim for loss of my personal earnings of £16,000 for a year from 2001 and interest thereon. Attached is a schedule of my earnings for 2002.

21. 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 33% per annum and using a debt collection agency which contacted friends, neighbours and my parents.

STATEMENT OF TRUTH
I believe the facts as stated in these Particulars of Defence and Counterclaim are true.


xxxxxxxxx
Dated 30 June 2009

[Amethyst]

Re: aski - Natwest

Okay.

have you got the spreadsheet you used to calculate the interest charged on the £1551 (2001 charges) ?

at what point did the claimants remove that amount from the claim ? is it included in the October amendments to the POC ?



I'm not sure you personally have any counterclaim against the bank legally - have you taken any advice on this?

[askl]

Re: aski - Natwest

Amethyst,

Thank you so much for your help.

The counterclaim should presumably be for loss of my personal income caused by the bank overcharging an otherwise profitable company and the stress over 8 years caused by this disagreement, where the bank is claiming £28k plus similar in interest and £20k legal costs over a disagreement about £4k bank charges.

I'm going to rewrite the Particulars and post later today.

Thanks again,

askl

[Amethyst]

Re: aski - Natwest

Okay


This part concerns me as i think they are correct regarding the counterclaim.

25. The Defendant is not entitled to bring a counterclaim nor an argument of set off against the Claimant on behalf pf the Company. If the liquidator felt that it was the Claimant that caused the Company to go into liquidation then it would have been for the liquidator to bring a claim against the Claimant. The Defendant cannot bring this claim on behalf of the Company.

Although I think you are entitled to defend their claim against your personal guarantee on the unlawful charges elements (the £1551 plus interest)


So defence wise...

The unfair charges are the entire debt, however if Natwest business account terms are the same as the personal account terms, then the read across buggers up that argument a bit as you know already barring the charges under the 2001-2003 terms - which is the £1551 + interest charged on those charges plus compensatory or statutory interest back.

Natwest have taken just the £1551 off of their claim ? so accepting that the test case read across , and thus in the courts eyes they have refunded charges which could be penal to you.

The rest could be considered incapable of being penal based on the read over from the test case.

Thats why Natwest have asked for a stay lift and summary judgment as your defence has no prospect of success. (ie. in their eyes they are only claiming from you a debt built up of lawful charges as they have removed those which could be unlawful) and the first bit i quoted is why they want to strike out the counterclaim.

with me so far? lol.


so you are left arguing for the interest incurred on that £1551 (which I have to assume you have worked out correctly to be around 10k) so basically just on the penal charges aspect of the case you are left defending around £11551 plus statutory interest.



The second element is this guarantee. I don't really understand this and the POC is confusing.

Basically as I can see the bank lent the business 14k as an overdraft facility on the basis you gave a personal guarantee on that money.

The bank then lent the business a further 19k as an extended overdraft facility on the basis of a further personal guarantee.

The second overdraft extension and personal guarantee didn't happen (and you have in writing that is was all agreed and in place) and it caused the bouncing of numerous cheques which had been paid out off the back of the new 19k which incurred the charges.

So thats the second argument for the charges incurred after the new 19k promise, thus under breach of contract. (not getting into damages or anything yet)

So you have all the paperwork to back everything up and the terms of the overdraft/guarantee were stuck to etc and can be proven ?



Then the damages, which is on top of all the charges incurred. The calculations and surmissing of costs seems a little random to me, and I don't understand damages of this kind too well so you would need to look to someone else for help on that part and refer back to first quote in this post.


We sounding right?


I do think you need to get a response and evidences in in response to their revised claims.

[askl]

Re: aski - Natwest

Sorry everyone for the information overload.

Strategy suggestions please - the hearing follows my Applicantion Notice to strike out the claim, because NatWest have failed to provide the calculation or break-down of costs resulting in the £30 per bounced cheque charge etc ordered by the Court (three times since April 2008).

NatWest have out of the blue, without order, revised their Claim, which I received 7 working days before the hearing. They have also applied at the same hearing to strike out my claim - "no real prospect".

So far I have not received notification nor agreement from the Court in connection with NatWest's application.

NatWest's Application Notice says "Should the Defendant wish to rely on evidence in responce to this application then he should file and serve such written evidence at least 7 days prior to the hearing pursuant to Part 24.5 (1)" - that means by 30 June - which gave me about 5 working days from receipt.

Do I amend my Claim, and if so should I send NatWest / the Court a copy in advance?
------------------------------- merged -------------------------------
Amethyst,

You are a godsend.

I have both guarantees.
I have a letter from NatWest dated 2004 listing both and later in February 2007.

However, in all their Claims they conviniently never ever mention the second guarantee.

askl
------------------------------- merged -------------------------------
The actual charges and interest charged on the charges I am counterclaiming total to their claim of £28,551.
And damages £16k