Tempty V Natwest

[Tempty]

Re: Tempty V Natwest

LOL ok I'll leave the pom pom's in your safe hands till I get back then :okay:

[Tempty]

Re: Tempty V Natwest

well the date for the hearing is drawing ever closer and I have spent the last 2 days reading reading and yup more reading. what have others used in their hearings.... have judges taken these things into account etc.
Hardship is one thing I know I can prove...... hubby losing his job after struggling to recover from broken ankle ..... then being in car crash (final straw) ........ Me losing mine at Sainsburys...... etc. I intend to include full breakdown of expenditures. Will also include details of my dealings with natwest.... the fact they took £704 (in benefits) when only £498 went into the account in April (I thought the limit was £90 in one month) ...... the agreement they made to raise the overdraft limit to cover the debt for one month in may...( they knew what the situation was with the court case at the time... said this agreement would allow enough time for case to be settled....yeah right... and freed up a small amount of cash so i could buy food...... so well aware of hardship they were causing ) Then I have loan details...... when may's agreement ran out they pushed me into taking a loan...... even says on the agreement loan to cover debt to this bank!!!. Hubbys statements will also be included...... to show charges on my account have had a knock on effect on his account and has caused him to rely heavily on his overdraft just so we can survive. So proving hardship is not going to be a problem i think.

with all that said and done however I have a few questions about some of the info I have been given to use.
Namely Skeleton Argument.
the example of a skeleton argument i have seems to involve the Human Rights Act to quite a large degree! Now forgive me if I'm wrong here but i was under the impression that the right to a fair trial within a reasonable time. is used in relation to criminal trials only! and that in criminal law a reasonable time can be seen as anything up to 7.5 yrs! (please correct me if I am wrong here) In light of this and having read through more then a few cases where this argument has failed... I'm really not sure I want to include this in my argument..... any suggestions here?? Am i just being an idiot and should use anything that might help....however remote it seems!!!


The other problem I seem to have with the skeleton argument is this....
if the hearing is to lift a stay already set (not the case here)..... then i write the argument based on facts to lift the stay...... i will then get to read my argument first and the defendant gets to answer points raised in my argument afterwards.

If however the skeleton argument is to avoid a stay being instated (as is the case here.... my stay was lifted.... cobblers are the ones that asked for this hearing) Then Cobblers get to lay out their argument first... and I will get to answer their points and then raise my own.
now there lies my problem! I don't have an argument from the defense to argue against!! As usual Cobblers have sent me nothing!!! no surprise there.

Even if I get their docs on the deadline..... (now tues) I will not have enough time to lay out my argument in defense of their's .... lol the buggers really have turned the tables on me on this one...... I'm defending the lifting of my stay here NOT applying to have one removed.
So in light of this the only thing I can think of to do is to write the argument as though the stay had been imposed again and point out to the court that yet again no communication or information of any nature had been received from Cobblers (gotta watch that ... I've said that to a clerk already...lol). not quite sure how that's gonna work during the actual hearing though...... oh well cant defend what I haven't seen I suppose.

Any ideas or thoughts anyone?

[Sapphire]

Re: Tempty V Natwest

Tempy I'll be watching a waiting with Pom Pom's at the ready to shake on your behalf hun.
Don't forget nice sensible comfy shoes hun, you can't think property if your feet hurt. :okay:

sapphire

[Tempty]

Re: Tempty V Natwest

Thanks Sapphy hun

ok arguments I think i'm ok on
hardship....... no problems proving that one
benefits inalienability ...... think I got that one pretty much sorted too
FSA hardship waiver .... got that one
Banking code..... shows they did not follow it etc
Those are the ones I know I'm confident on. What else do I need?

I know there is more I really need to get to grips with here........ pointers? ...... ideas anyone?

[enaid]

Re: Tempty V Natwest

Not too hot on this Tempty but I would get it in somehow that they have not complied with any instructions so far and how they have at every stage delayed the process.
If it were a bit nearer i would come and hold your hand, but then I'd have to have a drink first and that may be dangerous lol
I just hope you get it all sorted and soon Enaid xxxxxxxx

[Tempty]

Re: Tempty V Natwest

Awww hunni I know you'd be there if you could
get some rum in hun....... you can help me celebrate or commiserate afterwards LOL

[Delta]

Re: Tempty V Natwest

Can you not inform the court that they have not complied with the bundle/defence etc? Surely that has got to go against them.

[WendyB]

Re: Tempty V Natwest

I could be wrong (and usually am lol) but I'm pretty certain that the £90 is the total amount they can take in paid referrals in a month. I've also read somewhere recently that they will only take a max of 3 charges ie for bounced d/ds, in a DAY, not a month. I seem to think this is in their new T and Cs.

I'm sure you've got enough to knock em dead anyway- I'll be waiting with my pom poms.

[Delta]

Re: Tempty V Natwest

Wendy, that seems to be ringing very loud bells with me too, I am sure I heard/read that.

[WendyB]

Re: Tempty V Natwest

Thank God for that Delta, I thought I was imagining it! Or making it up.....

[Amethyst]

Re: Tempty V Natwest

SKELETON ARGUMENT


The Claimant will rely on the following submissions:

1. Blanket stays – The imposition of blanket stays runs contrary to the wishes of the Master of the Rolls and my right to have my case decided on its merits.

2. Hardship - i) The only monies deposited into my account, since August 2006, were by way of Social Security Payments, namely Tax Credits and Child Benefit, and therefore the account was not funded by any means other than mentioned.

ii) The unlawful charges I seek to reclaim were debited from these funds. Funds which were intended for the essential needs of myself and my family.

iii) Following my previous submissions (attached) my circumstances have changed. My partner, Mr XXXXXXXXX became unemployed on XX/XX/XXXX after a period off work on Statutory Sick Pay following a car accident, and is beginning a claim for job seekers allowance, housing benefit and council tax benefit. I also became unemployed, after a short term contract from April 2007, on 29th September 2007, but have since found alternative employment although with substantially reduced income. Our total household income has reduced by more than 50% since 3rd September 2007. Our financial statement is attached.

iv) Furthermore the FSA waiver guidelines to Natwest (attached) states ''Consumers who are in very difficult financial circumstances - 'hardship cases' Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.''


3. Defendant’s conduct - The Defendant have failed to submit documents to the court as ordered for the hearing on 25th October 2006. I have received no contact from the defendant since 14th September 2007 regarding this matter.

4. Balance of convenience – A stay will disproportionately affect myself and operate oppressively whereas it will relieve the defendant of all obligations towards me until the outcome of the test case

5. Status quo - A stay would not maintain the status quo but would favour the defendant by allowing them to continue to apply charges to my account without allowing myself to pursue a legitimate claim to a remedy.

6. Conditional order -Should the court be minded to order a stay it is respectfully requested that conditions should attach to the order so as not to prejudice the claimants position. I ask that this order prevent the defendant from harrassing me over repayment of any debt made up of bank charges, or passing any such debt on to a third party for collection.

Signed

dated



JUST A START ! Still working on it.


Statement of Evidence should also be done (working on now) which will point to all the evidence in your bundle.

[Amethyst]

Re: Tempty V Natwest

STATEMENT OF EVIDENCE (to front bundle) - ie the NUMBERS need to match section numbers on Bundle - it kind of acts as index. the bits quote you need to highlight in your copy of the bundle....maybe on the judges copy too....wouldnt bother with Cobbets Let em work it out. THE BOLD BITS ARE WHAT YOU NEED TO INCLUDE. and the letters and what not last two points.


STATEMENT OF EVIDENCE

1: Personal Financial Statement


2: Proof of Current Benefits Claimed

3: Schedule of Charges

4: Financial Services Authority Waiver Document FSA/PN/090/2007 27 July 2007
''Consumers who are in very difficult financial circumstances - 'hardship cases'
Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with
during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.''

5: Definition of Hardship - from internal policy documents written by the Defendants.
''Divorce - warranting loss of income
Loss of Job - customer or partner
Reduction in earnings due to unexpected occurence
Maternity
Increased dependants (more kids/dependant relative)


Customers should not be considered or Financial Hardship just because they have too much to repay. There has to be an additional change in circumstances. In considering suitability consideration must be given to current guidelimes from regulatory bodies and also consider reputational risk to the Bank whilst not compromising credit risk.

QUALIFYING CRITERIA

Total house income must be less than 15,000 PA

or - normal house income has suddenly reduced by 50% or more

or - unforeseen outgoings have suddenly increased by 50% or more''


6: British Banking Association - Section 14

14.1 We will consider cases of financial difficulty sympathetically
and positively. Our first step will be to try to contact you to
discuss the matter.

14.2 If you find yourself in financial difficulties, you should let
us know as soon as possible. We will do all we can to
help you to overcome your difficulties. With your cooperation,
we will develop a plan with you for dealing
with your financial difficulties and we will tell you in
writing what we have agreed.

14.3 The sooner we discuss your problems, the easier it will
be for both of us to find a solution. The more you tell us
about your full financial circumstances, the more we
may be able to help.


7: Natwest test case overdraft charges update

Recent customer information document from Natwest does not mention the exception for cases of hardship. The only mention of this is the following paragraph.

The suspension is subject to a series of conditions designed to protect customers' rights. You can read the form of the FSA suspension (direction) on the FSA website.



8) These funds are strictly exempt from being taken by way of any charges under the Tax Credit Act 2002 Part 2 Section 45 Inalienability as follows

45 Inalienability
(1) Every assignment of or charge on a tax credit, and every agreement to assign or charge a tax credit, is void; and, on the bankruptcy of a person entitled to a tax credit, the entitlement to the tax credit does not pass to any trustee or other person acting on behalf of his creditors.

9) And the Social Security Administration Act 1992 (s.187) which states as follows:

187.—(1) Subject to the provisions of this Act, every assignment of or charge on—
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b)any income-related benefit; or
(c)child benefit
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors.


10The case should be heard in accordance with the Overriding Objectives from the Civil Procedure Rules. Specifically

CPR 1.
2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
and
(d) ensuring that it is dealt with expeditiously and fairly;

11: Correspondence with Defendants
a)
b)
c)
d)
etc in date order with outline

12) Correspondence with County Court
a) Original Claim form
b) Orders ref stays / bundles/hearings etc
c) Letters too and from court - strike out letter/ letter re stay lift etc
d)
etc in date order with basic outline what letter is.

[thephoenix]

Re: Tempty V Natwest

Theses are quotes from following Hearing, to read the full version follow the link

http://www.publications.parliament.u...313/mulv01.htmhe

It raises some interesting points for you Ame


Judgments - Mulvey v. Secretary of State for Social Security

"....the appellant received a number of repayable awards from the social fund and was also in receipt of income support benefit. From this benefit the respondent made deductions towards repayment of the awards. On the above date the estate of the appellant was sequestrated. Thereafter she continued as before to receive income support benefit from which deductions were made. The issue in this appeal is whether the respondent was entitled to continue making these deductions after the date of sequestration. The Lord Ordinary held that he was not but the First Division of the Inner House of the Court of Session held that he was...........".

"............Section 140(2) requires a social fund officer to determine any question in accordance with any general directions issued by the Secretary of State. In the present case the Secretary of State had issued directions which required the awards to the appellant to be repayable.

The method of repayment is provided for in section 78 of the Administration Act of which subsections (1) and (2) are in the following terms:

• "(1) A social fund award which is repayable shall be recoverable by the Secretary of State.

• (2) Without prejudice to any other method of recovery, the Secretary of State may recover an award by deduction from prescribed benefits."

Income support benefit is a prescribed benefit for the purposes of subsection (2) and it was in terms of that provision that the respondent made the deductions which are challenged.

The appellant argued that the deductions from her income support benefit after sequestration amounted to an attempt to set off a pre-sequestration debt against a post-sequestration obligation, something which was impermissible at common law..............."

".........Both the Lord Ordinary and the First Division considered that the two codes relating to social security on the one hand and bankruptcy on the other could stand together so far as they might be mutually applicable. The respondent accepted that this was the position and indeed conceded that if the appellant's obligation in relation to the social fund was to be treated as a simple pre-sequestration debt independent of the respondent's post- sequestration obligation to pay income support benefit the general rule would apply to prevent the one being set off against the other. However he argued that the position was more complex and did not fall within the ambit of the rule. It was not a case of compensation as understood in the law of Scotland but of the respondent exercising a statutory power of deduction which was quite a different process..........."

".........As LORD JAUNCEY OF TULLICHETTLE says, "My Lords, the appellant's entitlement to income support benefit is rendered inalienable by statute from which it follows that the corresponding obligation of the respondent to make payment thereof is not and could not be owed......."

".........more importantly, section 187(1) of the Administration Act provides in relation to income support benefit inter alia that "on the bankruptcy of a beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors............"

".........I therefore conclude that the purpose of that part of section 187(1) above set out was to make clear beyond peradventure that the permanent trustee could have no interest in any entitlement of a debtor to receive any of the social security benefits to which it applied the probability of any such invocation being successful must at least in the case of those benefits such as income support benefit which are income related be virtually nil. In short it can never have been contemplated in social security legislation that any part of the income-related benefits to which section 187(1) applied would find their way into the hands of the permanent trustee of a bankrupt beneficiary and indeed the trustee has no right to proceed against the respondent for payment of any part of the benefit to which a debtor may be entitled.........."

"........The principle purpose of the rule, as Goudy explains in the passage to which I have referred, is to prevent a creditor obtaining a preferential advantage over other creditors and thereby diminishing the assets which would otherwise be available for equitable distribution........."

".......My Lords, to apply the common law rule of concursus debiti et crediti to the right of the respondent to make deductions would be to apply it for a purpose, the personal benefit to the appellant, for which it was never intended.........."

[Amethyst]

Re: Tempty V Natwest

THANKYOU :kiss:

Tempts ignore that for now I'll work it into the evidence bundle once I have discussed it.....

when you are back let me know where you are up to you still okay to give bundle in tmw.


Tools - can you re edit the natwest document para 7 on the SOE pls. sorryyyyyy.

[Tempty]

Re: Tempty V Natwest

Bundle is in..... handed in to the court yesterday...... and should be delivered to day to cobblers.
Many Many thanks to all that helped put it together
and now we wait till the hearing next tues..... to see what happens!!
fingers crossed folks!