Court Claim Help Please - Natwest / Irwin Mitchell

[TUTTSI]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

As this is a long thread and I have not yet had the time to read back on this.

Are the arrears now more than 6 years old? that is one avenue as this thread was started back in 2009 some 4 years ago, and have you at any time acknowledged this debt.

Also, this case was stayed, I take it during the bank charges test case? It would be a great idea if you could update us with a time line point by point of what this case is about so that people can give you some excellent advice on going forward as it is hard reading back and trawling a hundred posts or more. I think I saw was trawling through the threads that Celteco had said they cannot issue a claim for the same debt or to issue to one and not the other as it was a joint debt whilst this case was still stayed. I am not sure about this and we may need to find one of our members with a legal brain to answer this now as the test case was lost and many peoples claims were stayed and never lifted.

When sent CCA requests ( you mentioned this in your post) were they all in order?

Hi all,

Unfortunately, for the first time (in absolutely ages !) I’ve just become a worried man, once again !

The reason for my worry is due to a longstanding, NatWest (joint) Account and specifically the overdraft facility.

This overdraft has gradually crept up to its current level of approx. £4500. The reasons were due to redundancy and a huge amount of bank charges. Despite my desperate plea’s NatWest wouldn’t entertain freezing charges / interest – when in fact all other institutions did, on request !

(At this point I’d like to add I issued a claim for approx. £800 of unfair bank charges, in early 2008 AND superseded this with an additional approx. £200 claim (thus making just over £1000, in total) in the middle part of this year (2009). This remains on hold !)

Over many months NatWest have ‘harassed’ me prior to shifting this to their representatives Triton Credit Services, Irwin Mitchell Solicitors and Shoosmiths. All these institutions have been CCA’ed BUT Irwin Mitchell have now decided to issue proceedings !

I have, today, received a “Claim Form” for Northampton County Court “Bulk Centre”, however, this has been issued specifically to my wife, as opposed to me !
If it was to me I wouldn’t have been so bothered !


I’m afraid this is the point that I now become ‘snookered’ !

Sorry this post has been so lengthy but PLEASE, PLEASE, PLEASE can someone advise how I proceed from here – I guess I’m now left with no choice other than to respond to the Claim within the 14 day timescale ?

Do I still have any other options ?

If I defend what is the likelihood of them not actually turning up, to court ?

Can I attend in lieu of my Wife – who I’d like to keep out of this ?

Can anyone offer me any guidance and also does anyone else have any experiences of Irwin Mitchell Solicitors ?

Thanks,

R

[Bill-K]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi RB - and welcome back, indeed !!!

As before, if I can help with the figures, then do let me know.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

Hi Tuttsi & Bill-K and thanks for your replies.
Apologies for my delayed response but I'm now on line and will try and get some re-caps / facts posted over the next hour or so.............
Thanks

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

The latest letter, from Ascent, reads (quote):

"__ June 2013

Dear Madam

Claimant: National Westminster Bank plc
Defendant: Mrs. ______ _______
Claim Number: ________

We refer to the above matter, and enclose, by way of service, Notice of Change.

As you will no doubt have seen in the press, the Supreme Court handed down its judgement in
the case of The Office of Fair Trading v Abbey national plc and others (the "Test Case") on
25 November 2009. As a result of the Supreme Court's judgement in the Test case and for the
reasons set out in the remainder of this letter, we consider that your Defence has no
reasonable prospect of success and that there is no other compelling reason why that
element of this case should be disposed of at a trial.

We note from your Defence that you allege that the charges applied to the account by
National Westminster Bank plc ("the Bank") were unfair and/or constitute penalties.

Under the Test Case, the High Court has already found that no charges levied by the Bank
are capable of being unlawful penalties. In his decision of 24 April 2008 (the "First
Judgement"), Andrew Smith J considered whether a number of terms identified by the OFT
(primarily then current terms but also a small number of historic terms) were capable of
being unenforceable penalties. He found (paragraph 323):

"I therefore conclude that none of the provisions which the OFT has identified means that the
customer is under a contractual commitment such that the Relevant Charges could be a
penalty for breach of the commitment, and so unenforceable at common law."

As to the argument that the charges are unfair under the UTCCR because they are
disproportionately high compared to the costs incurred, the Supreme Court has unanimously
found that the level of unarranged overdraft charges cannot be assessed for fairness under
the UTCCR. For example, in his judgement, Lord Walker held (paragraph 51):

"I would declare that the bank charges levied on personal current account customers in
respect of unauthorised overdrafts (including unpaid item charges and other related
charges) constitute part of the price or renumeration for the banking services provided
and, in so far as the terms giving rise to the charges are in plain intelligible language, no
assessment under the Unfair Terms in Consumer Contracts Regulations 1999 of the
fairness of those terms may relate to their adequacy as against the services supplied."

(It should be noted that Andrew Smith J had already concluded in the First Judgement that the
Bank's then current terms were in plain intelligible language (paragraph 293).)

The Test Case judgments of both the High Court (in respect of the penalty doctrine and the
finding that the Bank's terms are in plain intelligible language) and the Supreme Court (in
respect of the UTCCR argument) constitute binding precedent which will be applied by the
County Court when it considers your pleadings.

Accordingly, the Bank believes the County Court will conclude that your Defence has no
reasonable prospect of success. We therefore invite you to write to the Court advising that
you withdraw your Defence.

If you do not agree to withdraw the Defence, as instructed we will make an application to
strike out your Defence and that Judgement be granted in the Bank's favour. We reserve the
right to request that you meet the Bank's costs of any application on the basis that your
refusal to withdraw your Defence is unreasonable.

We look forward to hearing from you.

Yours faithfully

Ascent Legal"


Phew ! and that is their letter, in its entirety.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

The above letter was then supereded by a letter from Northampton (CCBC) County Court stating the 1st Claimant to be National Westminster bank plc and the 1st Defendant Mrs ______ _______ (my wife). This was headed up "Notice of Transfer of Proceedings" (Form number "N271 Notice of transfer of proceedings" at the foot)

All it said was (quote):

"To all parties

This claim has been transferred to the _____ ____ County Court as the CCBC Sol is No Longer Acting."

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

The above is where we are currently sitting.
I will post my defence, shortly.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

The Particulars of Claim were issued back in November 2009 by Irwin Mitchell, on behalf of Natwest, through Northampton (CCBC) County Court. These read (quote - exactly as laid out below):

"By agreement(s) entered into between the
Claimant and Defendant, the Defendant has
failed to pay the sum of £4***.**. The Claiman
t has requested payment but the Defendant h
as failed to pay the full sum demanded. The
Claimant claims the sum of £4***.** and in
terest under s.69 of the County Courts Act 1
984 at a rate of 8% per annum from **/11/2009
until judgment or sooner payment. Costs. The
claim does not include issues under the H
uman Rights Act 1998. The Claimant has compli
ed with Sections III and IV of Practic
e Direction - Pre-Action Conduct of the Civi
l Procedure Rules."

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

2 days after the above was received I put in a CPR 31.14 Request - a day after I acknowledged service to the court.

Approx 2 weeks later I submitted my defence, as follows (quote):

case/claim No: ********




In the Northampton County Court




NATIONAL WESTMINSTER BANK PLC
CLAIMANT
-AND-
MRS ******* ********
DEFENDANT

DEFENCE

All allegations made in the particulars of claim are denied unless specifically admitted in this defence.

1: The Defendants had a personal bank account, account number ******** hereinafter referred to as “the Account”, maintained at the Claimant's *********** Branch sort code **-**-**. The account is a jointly held account and Mrs ******* ******** respectfully requests that her husband Mr ******* ***** ******** ( the additional named account holder) be permitted to act as Litigant in Person in relation to this claim on behalf of them both.


2: The Account, at the time of the claim, is in debit by £4***.**

3: The Defendants dispute the amount of £4***.** in full, it being made up of disputed unauthorised transaction charges and debit interest and subsequent charges on the same (“the Relevant Charges”). It is the defendant's contention that these charges are unfair under The Unfair Terms in Consumer Contracts Regulation 1999 (“the 1999 Regulations”), under Regulations 5(1) of the 1999 Regulations, and by analogy to paragraph (e) of SCHEDULE 2 to the 1999 Regulations:

Indicative and Non-Exhaustive List of terms which may be regarded as unfair

Schedule 2 (e) Requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

4: The claimant accepts that the Relevant Charges were debited in accordance with the terms of the contract (“the Relevant Terms”) between itself and the defendants, but contends that none of the Relevant Terms were individually negotiated. Contrary to the requirement of good faith, the Relevant Terms under which the Relevant Charges have been applied are contrary to the requirements of good faith, as they cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the Defendants.



5: In particular, the defendants submit that the Relevant Terms are unfair because they:
a. were not available to the Defendants in advance, which resulted in the Defendants becoming irrevocably bound to terms with which they had no real opportunity of becoming acquainted before the conclusion of the contract;
b. require the Defendants to subsidise the running and/or operation costs of accounts other than that of the Defendants.
c. gave the Claimant priority over the Defendants’ other debtors with regards to the application and payment of the Relevant Charges to the Account,
d. gave the Claimant control over the use of the Defendants’ salary or benefits, and allowed for the automatic application of the Relevant Charges, with little or no notice to the Defendants
e. they forced the Defendants into a cycle of debt, where the Relevant Charges directly or indirectly gave rise to the application of additional charges to the account, without any restriction or limitation.


6: The defendants therefore contend that the terms are unfair under The Unfair Terms in Consumer Contract Regulations – Regulation 5 para (1 and (2) and as such are thus not binding on the Claimant under Regulation 8.

7: The defendants aver that following the recent judgment by the Supreme Court (25th November 2009) Case [2009] UKSC 6 (On appeal from: [2009] EWCA Civ 116 ) it is extremely likely that further litigation will follow, either between the OFT and the claimant or otherwise to generally decide the issues raised by the defendant in (3), (4) and (5) above. The defendant therefore contends that it would be appropriate for the Court to apply a general stay in the instant claim pending resolution of the issues raised.

8: The defendants have been in communication with the claimant regarding the disputed amount. See appendix 1 for copy of letter sent to the claimant on **** March 2008, appendix 2 for the claimant’s response on **** April 2008, appendix 3 for copy of letter sent to the claimant on **** July 2009 and appendix 4 for copy of claimant’s response dated **** August 2009.

9: The defendants respectfully request permission to reserve the right to submit a counterclaim should it be required by the Court.

10: The defendants recently submitted a request to the claimants under CPR 31.14 on **** November 2009, a copy of which was also sent to the court for reference and is included in appendix 5. The claimant wishes to advise the Court that the Claimant has failed to comply with this request, failed to request more time to respond, and failed to offer or agree to an extension of time for the filing of this defence. The defendants are embarrassed by the Claimant's apparent abuse of CPR and are aware that an application may now be made by the defendants for the proceedings to be struck out or stayed for non-compliance with a summary costs order. The defendants intend to submit a separate witness statement to the Court and will respectfully seek the court’s guidance on this matter.

Statement of Truth:

‘The Defendants believe that the facts stated in this Defence are true.’


Signed:

Dated

Mrs ******* ********




Signed:

Dated

Mr ******* ***** ********




And that, m'lud, concludes the case for the Defence !

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

I never heard anymore from Irwin Mitchell and spoke to the court, after the deadline date (several times), who informed me that because the Claimant had not responded the case would be stayed. They said that the claimant would need to make an application to the court to lift the stay and transfer should they wish to proceed. If this application was made and granted the claim would be transferred to my local court and I would be advised !

Just over 3 and a half years has now passed, since I received the Particulars of Claim - and I've just received the above mentioned advise that this has now been transferred to my local county court - I guess this means they are now, after all this time, intending to proceed, does it ?

Thanks again in anticipation of some further (kind) help everyone.

Kindest regards,

[TUTTSI]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

RB from what you have posted up it appears to me that NW through their solicitors originally issued a claim against you for £4........you responded by counter claiming bank charges. Since the Bank Charges test case was lost and we were all left with court claims in the courts which were stayed, nobody has been successful in bringing this type of action in reclaiming bank charges. In this case they were claiming against you presumably for an amount outstanding on your account? Was this a joint account or an account in your name or your wife's name? If I have this wrong please let us know because without the full facts it is very hard to advise. Was their a good reason why you were unable to pay what you owed to NW and have you tried to come to an arrangement with them to pay this debt off?

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

This was a joint account, Tuttsi, and the amount was over £4000.
Thank you

[TUTTSI]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

thanks RB - they issued this claim to your wife only and yet it was a joint account. They surely cannot make your wife responsible for a joint debt.

My question was in my previous post knowing that you cannot use the Bank charges against this debt have you tried to come to an arrangement with them as this debt is still within the 6 years as the debt appears to have been acknowledged when they issued proceedings against Mrs RB? I personally am not sure of the legalities of them issuing this to Mrs RB and not to both of you.

With a debt of £4k they could bankrupt Mrs RB, so unless they have not provided you with all the information on this account. Having looked back briefly Bill-K wrote a letter, did you ever send this?

From Bills earlier post:- I'm sure that many of us have received demands 'out of the blue' from DCA's, without the Original Creditor telling us who they have sold the debt to. DCA's often pass the debt on, and British Consumer's Smasher has had no less than NINE DCA's chasing the ONE debt !!! I consider this random re-selling to be rudeness at best, and harassment at worst. I usually send them something on the lines of this letter, wot I rote to SRJ recently. I don't know if this would be useful, but here it is, anyway. HTH :-
" Dear Sirs

I received a letter from you, dated xx/xx/xx, Your Ref: xxxxxxx, in relation to what appears to be an alleged debt of £xx.xx to Talk Talk, A/c no: xxxxxxxxxx.

I can confirm that, contrary to your letter, Talk Talk have made NO ATTEMPT TO CONTACT ME AT ALL, and I am very concerned that you have been led by them to conclude that I am choosing to ignore repeated requests for payment, when I have actually received NO such requests from either you or from Talk Talk.

I have now received further letters from you stating that Talk Talk have made every effort to resolve this, and threatening me with litigation. Talk Talk have in fact made NO EFFORT WHATSOEVER, and if they have led you to believe otherwise, then they have given you incorrect information.

If I am to treat your demand with any seriousness at all, then I must insist that you arrange for the Original Creditor - allegedly and presumably Talk Talk - to DIRECTLY provide me with FULL details of this alleged debt, along with a proper Notice of Assignation of the same to Yourselves.

If you are indeed a legitimate DCA, then I am sure that you will be aware that this is not just a matter of common courtesy - but is a legal requirement. Until such time as you can supply clear proof that this alleged debt exists and is lawfully enforceable, AND that you have been lawfully and properly requested to pursue it, then I would politely suggest that you refrain from threatening me with litigation.

Should you attempt to pursue this matter through the courts, then please be aware that the court will require certain pre-action protocols to be observed. This includes the conduct of both parties prior to the claim being submitted. I am not sure that the court would view the conduct of your client or yourselves thus far in a very favourable light.

As things stand, I have no indication of what this sum of money is for, nor whether you have any authority to request it from me. I am sure, therefore, that you will see that the only sensible action I can take is to treat your claim as fraudulent, which – incidentally – is why your original letter of xx/xx/xx was treated with the contempt it appeared to deserve, and was simply ignored.

I appreciate that you may well be doing a difficult job with the sincerest of intentions. However, I must ask you to similarly appreciate that there are a great many fraudulent operations in the field of Debt Recovery, and that I must - with all due respect - assume that your demand is fraudulent. Therefore, unless and until you can provide the lawfully-required documentation to support your claim WITHIN 14 DAYS of the date of this letter, it will be deemed by default that you have confirmed your abandonment of this pursuit.

Yours faithfully "

This was a joint account, Tuttsi, and the amount was over £4000.
Thank you

[wales01man]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

I would expect the banks and their DCAs will now go after the Op and others who counterclaimed and lost a pile of CCJs will be processed and those unlucky ones with assets may even be served with SDs

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

I'm really grateful for the posts and help but may I please ask what "Op" and "SDs" are ?
thankyou.

[R B 1968]

Re: Court Claim Help Please - Natwest / Irwin Mitchell

For information I have now telephoned Northampton (CCBC) County Court and asked them to explain what is happening.
I asked about the Transfer of Proceedings notice, to my local County Court, and why the single page didn't have an accompanying copy of the claimants application ?
I was categorically informed that apparently the case STILL remains STAYED !
They informed me that there was no application from the claimant to have the stay lifted OR transferred BUT the transfer has taken place because they are no longer a customer of Northampton CCBC County Court.
If the claimant wants to have the stay lifted then they still have to apply to the County Court (in this case my local one now instead of Northampton) and if this happens then I was told I will then receive notification AND a copy of the claimants application direct from my local County Court.
This is rather confusing ?