askl - Natwest

[Amethyst]

Re: askl - Natwest

Amethyst,

Thanks for all your help. I recently learned from NatWest that it submitted the same Second Witness Statment twice (once by fax on the due date, once by DX) - see above for the words; 16th August 2009, 13:40:PM.

They have made three errors in these statements in;
1) disobeying court orders to explain the "method of calculation" of all charges,
2) understating the Bank Charges twice by £40 in total,
3) excluding the cumulative effective of interest in their calculation of interest on the Bank Charges,
The Claim excluding Bank Charges and Interest thereon would have been just £70.
This £70 is also disputed as it is made up of the incorrectly applied 29.5% penalty interest.

Okay so apply to the court for a strike for disobeying the order for a third time ? pointing out the other errors too? aka Legal Beagles

The Judge has already shown he doesnt accept the breakdown as being 300 x £38 charges and that he wants what the £38 is made up of. SO if they have only done that again I don't think you have a problem.

[askl]

Re: askl - Natwest

Thanks,

I applied for strike out in August, but have instead been given a hearing date to determine the strike-out.
A single hearing will be held to consider my strike out of the claim, and the claimants request for strike out of my defence and counterclaim.

I would like to amend by claim and counterclaim primarily because of the information received from the claimant since my particulars of defence was submitted in Decmber '08.

Can I? Is there a procedure I have to follow, e.g. court request?

[Amethyst]

Re: askl - Natwest

I would like to amend by claim and counterclaim primarily because of the information received from the claimant since my particulars of defence was submitted in Decmber '08.

What was this?

To amend defence and counterclaim would be form N244 application.

[askl]

Re: askl - Natwest

The main changes that come to mind are;
1) In its Second Witness Statement of August, the Bank for the first time lists its charges and method of calculating the interest thereon (albeit excluding the cummulative effect). So I can finally show that the balance is made up of these two, whereas before it was entirely my rather complex calculation,
2) Mr Jutice Andrew Smith's conclusions of Jan '09 re NatWest 2001 charges are capable of being penalties,
3) From 1 October NatWest is charging personal customers £5 per bounced cheque, so I now have stronger proof that £30 is likely to be far greater than the cost to the bank,

[Amethyst]

Re: askl - Natwest

If you can show that ''1, The penalties should never have been charged because the account was within the guaranteed facility limits (this in itself should be enough),'' then I think you are sound whether or not the judge agrees that natwest have complied with his order.

The second overdraft agreement which led to the initial overspend (in the banks eyes) because that would negate all of the charges. Regardless of whether the charges are deemed penal or not.

This on top of the failiure to comply with ''“Unless the Claimant do by 4.00pm on Tuesday 04 August 2009 file and serve a Witness Statement explaining the method of calculation of all the individual charges made herein, the Claim for such charges and all interest there-on do stand struck out.”'' should be a strike out.

[askl]

Re: askl - Natwest

Would you suggest I give in the N244 reasons for updating Counterclaim,


"My defence and counterclaim were made in 2008 and need updating following the relevant High Court ruling on [] January 2009, two hearings and two witness statements from the claimant."

[Amethyst]

Re: askl - Natwest

I think we need to work out what your counterclaim is actually going to be before applying to amend it, the application to amend would probably be heard at the same strike out hearing.

If the Judge agrees with natwest that what they have given IS the breakdown of charges (which he hasn't done before but if they have a decent legal rep its possible he could be persuaded there is no further breakdown) then you need to have something to counter it.

Reclaiming charges is dodgy on the account as we have said before as theres the matter of the liquidator, however once the bank switched to the personal guarantee I think it could be argued that it at that point became against you as an individual being charged ??

Do you have the evidence of the second overdraft that was never put on the account ?

[askl]

Re: askl - Natwest

Hi, thanks for your interest, kind advice and attention to the detail of my case. I'll put a draft together soon (probably at the weekend).
Yes, I have the second guranatee signed by both parties - NatWest mention it in a their first request for payment from me in 2003 and the lawyers even sent me a copy in 2007 (not that I needed a copy).

[askl]

Re: askl - Natwest

I've been reviewing my defence and counterclaim of december '08 - much of it is no longer relevant because NatWest have finally provided the requested information - of course except for the all important breakdown of their costs for excess borrowing charges.

In the defence I say;

9 I respectfully request that the Claimant be ordered to disclose all the requested documentation and that the court grant me permission to amend this defence and counterclaim accordingly.

I would like to effect that request.

Note on your liquidator concern, none of the judges have bought into NatWest's liquidator point as NatWest have switched from asking the company to pay their penalty charges, to asking me to pay their fines.
£22k of the £28k of the penalty charges and penalty interest of 32.5% comes after the company stopped trading and was delisted as a Company.

[askl]

Re: askl - Natwest

I had understood that NatWest would pull out if the OFT case went against it, which it has for 2001 penalties. Hence my not using a lawyer.
I think I need to make a last ditch attempt to pull out, and if pay for a lawyer.

Can anyone suggest a suitable lawyer?

[Amethyst]

Re: askl - Natwest

The banks case should be struck out for thrice non compliance with court orders:-

.
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"."

The OFT case went for Natwest in the main part on penalties. There was one term in the 2001 conditions that would be capable of being penal. they havent said it IS penal though. Are the terms for the business account the same ? ( Legal Beagles )
the bank argue that the claim is not affected by the test case, being a business account however they refunded you the charges incurred during 2001 ( Legal Beagles )

Your argument is these costs should never have been added.

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 ?

I don't agree with your claim for damages as I have said previously. I would pull out the counterclaim and continue with defending the charges.

Will ask Cetelco to come have another look.

[Guest]

Re: askl - Natwest

I believe Amethyst has been reading this correctly all along and you should focus your attention on having the Claimant's claim struck out.

According to your post #92, you have a hearing at which the court will determine your application to strike out the claim against you and the Claimant's application to strike out your defence and counterclaim.

Until the outcome of that hearing is known, the court is unlikely to allow any further applications and nor would it be proper to do so. On a practical note, it is not worth spending any more time on any of this until after that hearing either, because it could all be for nought.

When is the hearing scheduled for?

[askl]

Re: askl - Natwest

Thanks Amethyst and Cetelco,

My concerns stem from Amethyst's suggestion that I would lose the CounterClaim.
Also my defence is out of date - and should be strengthen - for instance I can now demonstrate that all but £70 of the claim is made of charges and interest thereon (the rest being penalty interest that shouldn't have been charged).






If the bank loses the Claim for its charges and interest, then I should presumably win some compensation (even if nominal, I'd feel some vindication) and to reflect the enormous damage the bank has caused me if not in loss of income from a profitable business, then at least for the harassment brought upon me, my family, friends and neighbours, over the last 5 years especially given the current claim and costs stands at £80k over disputed charges of £4k.


My defence included a harassment counterclaim in an earlier filing - but I left it out in the one of 16/12/08 because I was busy and had only a few days to defend myself (because the Claim was delayed).


---------------


So although I think there's a good chance of the judge striking out the Claim - he/she may not. Instead I may have my defence and counterclaim struck out. Where does that leave me?
Fortunately I have a part 36 offer to settle the disputed charge in full (i.e. £4k in total) - but I haven't included this in my defence.

[askl]

Re: askl - Natwest

An alternative for the hearing in late October is to send in a second witness statement - in responce to NatWest's second witness stament - I understand this has to be done about two weeks before the hearing - by which time the Lords will have probably given their verdict............

[Guest]

Re: askl - Natwest

As I posted earlier on this thread, your case cannot be weakened for sending too much information but do bear in mind that the court may not consider anything further until the issue of whether or not there is a claim against you has been decided.