HELP-Please! wubberchicken - new POCs entered

[wubberchicken]

Re: HELP-Please!

LOL.....luv it..... :beagle:

[Amethyst]

Re: HELP-Please!

One thing...

''
Also, I issued my claim initially in the High Court. I'm purely assuming that the level of judge can still be District if he/she is just determining the N244 application? ''


How did you come to issue your claim in the High Court ?

(I'm sure you know the costs implications of the compound interest bitty of your claim so I'm not going to lecture you about it you're big enough to make your own decisions and calculations on risks)

[wubberchicken]

Re: HELP-Please!

Indeed...well initially, because of the sum involved (well over £5000) It was pointed out to me that I needed tio issue in the High Court.

Personally, I wanted to issue in the Small Claims at the time (2007)

Had to spend £400 on it as well....ho hum.

I wonder if I can get it to be moved down to the Small Claims? Or can I request that during the Case Management or Allocation phase?

[Amethyst]

Re: HELP-Please!

Is it at Leeds Merc ? (pracise directions might be a wee bit different thats all)

and track will depend a lot of what you want to do with the interest elements.

[wubberchicken]

Re: HELP-Please!

No....I have one in the Leeds Merc....that got transferred as you're aware from Harrogate Small Claims. I still have a Compound interest argument on that one and am just awaiting the new directions from the Leeds Merc.

My second and final claim with ANY Bank Charge is the one above. Greater value and only at the stage of POC issued and defence received then stayed.

I'm assuming the compound interest option needs in all probability to be in the High Court, however since there's case law it could be argued successfully in the lower court?

What do you think?

[wubberchicken]

Re: HELP-Please!

Well the whole lot now submitted into Court with a smile.

I'll keep you all updated as to what happens next...... da da da duummmmmm!

[Amethyst]

Re: HELP-Please!

There isnt case law that is completely conclusive especially on bank claims and is still very risky. Its isnt a fact of law (or whatever they call it) and is complex and will most likely put you in at least fast track even with a lower sum.

Bud is the man to speak to about CI so will try nidge him over this way at some point.

PERSONALLY at the moment especially I would keep my claim as simple as possible - charges, interest incurred on charges and stat 8%. The risk of costs is great even on that, and bumping up a £1.5k claim to £40k odd sticks you in a whole new ballpark for costs - AND theres been NO wins in court on CI on bank charge claims (some prior settlements after negotiation BUT that was when the banks position was MUCH weaker) and the view on unjust enrichment works both ways in court. ( I'm not against CI btw just not on bank claims in the current climate )

Limitations is okay but i wouldnt put that in my POC originally would leave the bank to argue that first then defend their arguments.

But like I said, talk to those who are much better on those things than I.

[wubberchicken]

Re: HELP-Please!

Thanks for that and much appreciated again.

Strangely, this afternoon before seeing youtr post today I was thinking about taking out the Limitations Act section in my POC for exactly the same reason you quote above.

The CI bit I agree on. However I could never work out the interest normally (not the s.69 one) on the charges so in all fairness the easiest way and the fairest way was to go the CI route.

It would be interesting to hear what BUD has to say on this.

Also prior to the Stay, I had a claim for charges and CI settled in full prior to a Court appearence. I know it doesn't mean I would have been successful, but does mean that the Bank waas never prepared to defend against that element of my claim. Insteresting but as I say...neither here nor there, I was if anything very fortunate. :tinysmile_aha_t:

[Amethyst]

Re: HELP-Please!

Apologies for the next bit lol.

To work out how much interest they have charged you (without using vamps old spready on cag which used to be great but I cant find anymore) I tend to say to work out what proportion of your OD was charges that month, and how much interest you were charged, then use the same proportions as charges/OD.

yep its a guesstimate and probably under slightly depending how long you spent in OD etc each month, but better than nothing, and lol, certainly wouldnt add up to 40k


Re '''
Also prior to the Stay, I had a claim for charges and CI settled in full prior to a Court appearence. I know it doesn't mean I would have been successful, but does mean that the Bank waas never prepared to defend against that element of my claim. Insteresting but as I say...neither here nor there, I was if anything very fortunate. :tinysmile_aha_t:''''

completely agree with you. The bank was never prepared to defend against ANY part of claims back then so it just took the guts to stick it out and negotiate hard knowing they would rather eat poo than risk court. Different ball game now, as you say.

[Tools]

Re: HELP-Please!

Just so happens I have Vamps "Chamber" here on this lappy

VAMPIRESSS CHAMBERS

I don't know how much is still on there but I know everyone used to appreciate her spreadies.

[wubberchicken]

Re: HELP-Please!

Interesting letter came this morning in reply to my N244 Application on the 28th (above).....

"I am writing further to your application filed in this case on 28 January 2010, the application was referred to District Judge XXXXX who asks that a Draft of the proposed amended POC be attached to the application.

On receipt of the amended POC the application will be referred back to the District Judge."


So a lot more time available to me now....

Any thoughts anyone?

[Amethyst]

Re: HELP-Please!

Okay lovely jubbly. So we need to work on the POCS to get in.

Did you get all your personal example bittys done from your statements ? Can you put up anything you feel is relevant and we can work on those with the arguments.

Also need to know what post 2007 charges/OD debt you have in your claim (ie whether cca 140 CAN be used or not)

(btw we have had a response from one of the first POCs to go in on the new arguments and we are working on that now so we have a fair idea of how they are going to act in response and basically YES we DO need the personal example bittys for the POC - generic will increase costs liability as PArt 18's etc will come into play)

Also have you made a decision on your interest being claimed ?



This will be of interest for your claim - whatever you decide to do with it or if you would rather work on it over the road as you appear to be looking at the misrepresentation part mainly ? (if this doesnt show up then pm me and I'll email it you) also read Is there REALLY a case against the banks ? - Legal Beagles thread.

[wubberchicken]

Re: HELP-Please! wubberchicken - POCs bit

Bit of a fraught morning and afternoon today.

I couldn't locate any of my original statements from my claims!!!! Found them all eventually phew!

Anyway, this week unfortunately haven't been able to spend anytime on making it personal, though I did find out that I closed my account December 06 - Jan-07. The amount in the red was over £1000 and settled that in lump sum.

They did however balls up the closure as well insofar as they stamped and confirmed the account closure then didn't close it nor did they cancel about 4 x DD's causing it instantly to rack up charges. I even had to take time out to go back into the branch to sort this mess out. Telephone banking was useless and couldn't help either. They waived the charges in the end!!!

Off the top off my head, the one claim where I am claiming all unpaid STO's and DD's charges, the majority if not all the term within which they were charged I had an Instant Plus Account, meaning I could not have an O/D facility regrdless.

Therefore, (and if was a service charge) where exactly was the service when if I tried getting any funds from the counter or cash machine, the bank would not have charged me a penny since no available funds?

Also their defence and T&C's implicitly state the charges are to cover our administrative costs!!!!!

I was forever paying charges and hving to find the funds to pay the original DD or STO. I noticed they could take their charges as a priority 2 weeks later often leaving me shorter and shorter every month to fund my normal DD's and STO's, basically charges on charges.

I will look at the account history to get a clearer picture of charges on charges evidence.

My other claim has a right mix of various charges and towrds the later part of the period I'm claiming I had an overdraft put in place.

Again I will need to go into the history of the use to ascertain what the causes and consequences were.

I would love to know about the CCA bit insofar as what is the cut off point for the new Act to start on or can it be applied retrospectively?

Also on a general point, since the SCoJ ruled that the terms were a core Term of the agreement because of the revenue generated, how did they manage beforehand and how are they going to manage now seeing a Abbey's/Santanders current account is charges free?

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

Abbey Zero - cross subs from the obligatory mortgage account.


The unfairness provisions can apply retrospectively to a credit agreement made before they come into force if any sum is or may become due under the agreement after the end of a transitional period of one year. They applied to new agreements from 6 April 2007, and to pre-existing agreements from 6 April 2008. Agreements completed before the new provisions took effect remain subject to the previous extortionate credit bargains provisions.

The issue with Overdrafts is if you are in and out of overdraft is each time you go back into overdraft a new agreement for the purposes of the CCA.

But as you were all paid up before April 2007 I dont think it could apply to you in either case.


MSE explain it quite clearly in their guide

• This doesn't apply to everyone
  The date range that can be used for this is not as wide as the previous law. This piece of law applies to all new charges from 6 April 2007, and to people who had charges before April 2007 providing the borrowing was still outstanding on 6 April 2008.
  There is still a question as to how this law applies to accounts that moved in and out of an overdraft limit over this time, but as it’s yet to be tested it’s too early to say what the result on this will be. As it’s the bank that needs to challenge the legality of the charges though, it's not an automatic disqualification.

[Amethyst]

Re: HELP-Please! wubberchicken - POCs bit

CURRENT instant plus terms and conditions

5.1 Borrowing money
(a) Our overdraft services are not available on your account. Although you
are not allowed to use our overdraft services, your account may become
overdrawn in the following circumstances:

i) you owe us fees or interest, but do not have enough money in your
account to pay us this money;

ii) a cheque you have paid into your account is returned unpaid to the
person giving you the money, but in the meantime you have taken
money out of your account so that you do not have enough money in
your account to cover the amount of that cheque when it is returned;

iii) you buy something with your card when you do not have enough money
in your account to cover the purchase but the retailer lets you make the
purchase anyway without having checked with us to see whether you
had enough money in your account.



INSTANT PLUS TERMS LOOKED AT IN TEST CASE (important bit for YOU to think about is bolded)

5.
Abbey’s May 2005 conditions relate to its Instant Plus account. Abbey did not provide a cheque book or a cheque guarantee card to customers who had an account of this kind. The only Relevant Charge that was levied in respect of Instant Plus accounts was an Unpaid Item Charge. If an Instant Plus account was being operated as Abbey contemplated, there would be no question of the customer using a cheque guarantee card, and so no question of him contravening condition 13.3(b).
MR JUSTICE ANDREW SMITH
Approved Judgment
OFT
v
ABBEY NATIONAL PLC and 7 ors.
6.
Mr. Ali Malek QC, representing Abbey, submits that a customer with an Instant Plus account might be said to have been in breach of condition 24.2 in these circumstances: he might have given a direct debit instruction or a standing order, payment might have been refused because he had insufficient funds in the account and he might thereby have incurred an Unpaid Item Charge that led his account to be overdrawn. However, in those circumstances no Relevant Charge would be incurred because of breach of condition 24.2. Even if it could be said that the customer overdrew his account (rather than that he allowed his account to become overdrawn), the Unpaid Item Charge would not have been charged because of that. On the contrary, the Unpaid Item Charge would have been the cause of the account becoming overdrawn.
7.
Accordingly, I do not see when a Relevant Charge might have been levied upon an account to which the May 2005 conditions applied because of a breach of condition 13.3(b) or 24.2, unless for some reason Abbey had allowed it to be operated in a way that was contrary to its practice. If any such case were to arise (and that seems unlikely), it should be examined in light of its own facts.
8.
Abbey argues that nevertheless I should grant declaratory relief because the OFT pleads in its Defence to Counterclaim (at paragraph 87.1(b) and Annex G2 thereto) that conditions 13.3(b) and 24.2 are capable of being penalties, and, that assertion having been made by the OFT, the question should be determined by the court. I am unable to accept that this would justify a declaration about Abbey’s May 2005 conditions. I agree, however, that it is inappropriate in these circumstances that the assertion made by the OFT remain in its pleading. I propose to make an order striking out from Annex G2 to the OFT’s defence to counterclaim the references to Abbey’s May 2005 conditions.