Defence for those having their action stayed

TANZARELLI

Stokey125 wrote: »

Part A You are asking for an order that the stay in this matter be lifted because the reason for the stay will not lead to a saving of court time and there is no other compelling reason for teh stay.

I would also add that:

In the OFT press release 126/07 the OFT have clearly stated:

“The OFT is continuing its financial investigation to determine whether or not unauthorised overdraft charges are fair, based on its view that the fairness test does apply to them... ...The banks take the view that the charges are not covered by the fairness test in the UTCCRs and the court case at the beginning of 2008 is designed to test this point of law. It will not lead to a judgement as to whether the charges themselves are fair or not.“

gotthem

This is for the more legally minded folk out there and any advice or comments are gratefully received.

Below are the main points of my case;

TIMESCALES FOR BANK CHARGES<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p>
<o:p> </o:p>
FIRST LETTER – 3<SUP>rd </SUP>May 2007<o:p></o:p>
<o:p> </o:p>
SECOND LETTER – 22<SUP>nd</SUP> May 2007-10-23<o:p></o:p>
Response from <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:City w:st="on"><st1:place w:st="on">Halifax</st1:place></st1:City> declining complaint – 24<SUP>th</SUP> May 2007-10-23<o:p></o:p>
<o:p> </o:p>
Claim Issued via Money Claim Online – 11<SUP>th</SUP> July 2007 (deemed served 16<SUP>th</SUP> July 2007)<o:p></o:p>
<o:p> </o:p>
Request for Judgement Entered – 31<SUP>st</SUP> July 2007 (granted and issued)<o:p></o:p>
<o:p> </o:p>
Bank says they receive notification of Judgement – 7<SUP>th</SUP> August 2007-10-23<o:p></o:p>
<o:p> </o:p>
Letter sent to Bank asking for funds by cheque – 8<SUP>th</SUP> August 2007-10-23<o:p></o:p>
<o:p> </o:p>
Letter and Notice of Judgement faxed to <st1:City w:st="on"><st1:place w:st="on">Halifax</st1:place></st1:City> – 30th August 2007<o:p></o:p>
<o:p> </o:p>
Warrant of Execution requested from courts – 7<SUP>th</SUP> September 2007-10-23<o:p></o:p>
Warrant of Execution issued – 10<SUP>th</SUP> September 2007<o:p></o:p>
<o:p> </o:p>
Letter from Bank stating they were asking for judgement to be set aside and a stay on my action – 21<SUP>st</SUP> September 2007<o:p></o:p>
<o:p> </o:p>
<st1:City w:st="on"><st1:place w:st="on">Northampton</st1:place></st1:City> confirm they receive banks application for the judgement to be set aside – 4<SUP>th</SUP> October 2007-10-26<o:p></o:p>
<o:p> </o:p>
<o:p> </o:p>
<o:p> </o:p>
The banks application is made on the basis that they have a real prospect of defending the case and that there is a good reason as to why they should be heard. <o:p></o:p>
They state CPR 13.3 (1) a and CPR 13.3 (1) b as their grounds for the application.<o:p></o:p>
<o:p> </o:p>
The banks claim they did not know about any claim until they received notification on the 7<SUP>th</SUP> August 2007 that a judgment had been entered against them. They offer no explanation for them not knowing about the claim.<o:p></o:p>
They state that they did not enter an acknowledgment or defence due to them being unaware of the claim.<o:p></o:p>
They also say they have not had a chance to defend themselves.<o:p></o:p>
The bank state in their witness pack that they made an application for the judgment to be set aside ‘within a matter of days of becoming aware of the judgement.’<o:p></o:p>
<o:p> </o:p>
I argue that the bank have had ample time to respond to any claim that I have made against them.<o:p></o:p>
They admit that they became aware of the judgement on the 7<SUP>th</SUP> August and that they applied for the judgement to be set aside within a matter of days, however Northampton have confirmed to me that they did not receive their application until 4<SUP>th</SUP> October, a full 8 weeks and 2 days since the bank were made aware of the judgement.<o:p></o:p>
This goes against CPR 13.3 (2) which states that ‘in considering to set aside or vary a judgement the matters to which the court must regard include whether the person seeking to set aside the judgement made an application to do so promptly’<o:p></o:p>
<o:p> </o:p>
Surely 8 weeks and 2 days is not prompt and is not a ‘matter of days’ as stated by the bank.<o:p></o:p>
<o:p> </o:p>
Their witness pack is then mostly about their Terms and Conditions of their bank accounts and a large section on the OFT test case.<o:p></o:p>
<o:p> </o:p>
They sum up by saying;<o:p></o:p>
<o:p> </o:p>
The defendant requests the court to set aside the judgment on the grounds that;<o:p></o:p>
<o:p> </o:p>
The defendant has not had the opportunity to defend themselves<o:p></o:p>
<o:p> </o:p>
The defendant has a substantial and meritorious defence to the claim, which it has a real prospect of defending.<o:p></o:p>
<o:p> </o:p>
It would defeat the overriding objective of the CPR for the judgement to stand and for the claimant to be allowed to enforce it. <o:p></o:p>
<o:p> </o:p>
I would say that the bank did not adhere to section 12 of the CPR which is basically the procedure for making and defending any claims, and they only state CPR 13.3 (1) a and b as their main reason for being allowed to submit a defense.<o:p></o:p>
CPR 13.3 (2) is clearly in my favour as the banks did not apply promptly for the judgement to be set aside and because of this their application should be thrown out and the judgement allowed to stand and for the warrant to be executed.<o:p></o:p>
<o:p> </o:p>

Sorry if it's a bit long winded. Any comments, good and bad, are gratefully received.
Many thanks

gunnapaul2

Ive wrote to the court to try and get the stay lifted on my claim for bank charges and I have received a letter from the court with an application form to have the stay lifted, the problem is the application form seems very confusing and Im not sure what im meant to be filling in and where.

The form asks this:

1. How do you wish to have your application dealt with: a; at a hearing b; at a telephone conference c; without a hearing.
2. Give a time estimate for the hearing/conference
3. Is this agreed by all parties?
4. Give dates of any trial period or fixed trial date
5. Level of judge
6. Parties to be served

Part A.

1. Enter your full name.
2. State clearly what order you are seeking and if possible attach a draft.
3. Briefly set out why you are seeking the order. Include the material facts on which you rely, identifying any rule or stautory provision.

Part B.

4. If you are not already a party to the proceedings, you must provide an address for service of documents.



I am well and truely bamboozled, the only bit i truely understand is where it aks for an address to send the documents which relate to the claim which i presume is my address, other than that i dont have a clue!

Any advice would be good, thanks!

lindilou39

Phone the court...they will advise you accordingly.

urbankato

Hi all, I'm hoping someone could give some advice or tell me about a similar situation that's happened to them...

After going through the whole process of reclaiming my charges and then being told that i would have to wait until the 'Test' case i decided to appeal against the stay that was granted by the court in question.

I (with the help of a friend going through the same thing and some templates from consumer action group web site) put together a very good argument as to why the seemingly automatic decision that was made to stay my case was wrong.

I've now received a letter from the court saying that they have offered me a 30 minute hearing to decide whether or not the stay should be lifted..

To be honest, i thought the court would make a decision about this without a hearing and then get back to me with a yes or no answer so this has thrown me a bit.. can anyone offer any advice on the best way to act now or describe a similar situation so that i know roughly what might happen?

Thanks.

scandirose

can anyone help me!!!!
I have taken my bank (NatWest) to court over unlawful bankcharges, and they decided to stay the case, but i saw here on this page that you could ask for the stay to be removed under financhial hardship, which i have done.

I am now due in court on the 5th dec and then a judge will decide if the stay should be removed or not.
But i am not sure what i have to do? Will i have to speak and gather proof and evidence that i really really need this money back?
Has anyone else done this and have any idea what i need to prepare?

Would be very grateful for some help as this money is hugelt needed
please please help!

Edinburghlass_2

The above posts should help for the removal of a stay. However, as you are claiming financial hardship I would suggest you take along proof of your financial hardship with lists of your outgoings and income.

fullingdale

Mark_My_Words wrote: »

we have debt collectors chasing us for the outstanding overdraft

How is it that when we're claiming money owed from the bank we have to go through a long drawn out process that in some cases now amounts to around a years worth of hassle and all of these legal wranglings to get our money back.

Yet, when it comes to the banks claiming money owing from us (in their opinion), such as an outstanding overdraft that they can simply send you a couple of letters and then set the debt collectors on you?

I don't understand why the banks don't have to go through a similar claims process as we do?

metalmuttversion2

i recieved a letter through the post from the Warwick county combined court stating the following:

Upon reading the court file

IT IS ORDERED THAT

Upon it appearing that proceedings have been brought by the Office of Fair Trading in the High court on 27 July 2007 under Number 2007 Folio 1186 ("the test case") concerning an investigation under section 224 of the Enterprise Act 2002 into fairness or otherwise of certain charges levied by the Defendant this court proposes that it may be just and proportionate if this action were stayed pending the outcome of the test case.

Upon the defendant's application (copy annexed)

AND UPON it appearing that the following institutions are defendants to the test case
a) Abbey National plc
b) Barclays Bank plc
c) Clydesdale Bank plc
d) HBOS plc
e) HSBC Bank plc
f) Lloyds TSB Bank plc
g) Nationwide Building Society plc
h) The Royal Bank of Scotland plc

And Upon the claimant having had no oppurtunity to make representations with regard to the question of a stay

IT IS ORDERED that

1. The claim is stayed until further order to await the final determination including ( for the avoidance of doubt) any appeal of the test case

2. Either party may apply upon not less than 7 days written notice to lift the stay

3. This claim shall be striuck out at 4pm on 31 December 2008 unless by then an application to lift or extend the stay has been recieved by the court.

4. This order will come into effect at 4pm on 3 December 2007 unless by then the court has recieved written representation from any party seeking thatthe claim proceed to trial

5. Any such representations must be copied to the other party

---

This was generated on 14th November 2007, postal franking shows 19th November 2007 but the idiot postal system sent it fruther down the street to where i live, fortunately i was given it by hand with some other bits they posted wrongly.

I thought it best to show what i recieved and no doubt most of us have had similar? sorry about it being a bit long winded! that's the legal system for you!

Question are if anyone can help:-

1. what limitations are there in liftiing a stay
2. how do i do it

any help will be most helpful!

LozBingley

Not much point - I tried against BarclayCard but the Judge just said I'd not filled in the right forms! (What Forms? LOL)

You are best waiting till February when the High Court trial is over with.