Halifax overdraft victory!

Just wanted to share this with you guys. This case has been going on for quite a while and has taken a great deal of effort to achieve. So the original debt was to Halifax for around £2500, which they sold on to Lowell. I used the new 3 letter process and received mini statements and notice of assignment but not all that I requested.

So 6 months before statute barred (typical) they then send over to Lowell solicitors and I receive a letter of claim, to which I again reply that I still require:

1. Validation of the alleged debt (actual accounting).
2. A signed statement that no insurance claim has or will be made in respect of this claim.
3. A true copy of the Notice of assignment and Documents of Title.
4. A copy of the sale agreement.
5. A copy of your indemnity insurance for this specific action
6. Confirmation all documents you supply are signed by whosoever will be accepting full vicarious liability.
7. The termination notice
8. Any other documents mentioned in the Particulars of Claim
9. Details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied.

They then just resent notice of assignment and a couple of mini statements. Now from spending many an hour browsing this and other forums it seemed that this may be enough for them as overdraft debt is not covered by sec 77/79 CCA. Then I read a post from Tiggy with a link to this blog:

https://consumercreditlitigationanddebtcollection.wordpress.com/

This really is a great read and has a lot of information. In one of his posts, he mentions that hes been winning a few cases involving overdrafts where a lot of the debt was made up by bank charges, which could be seen as unfair under s140a CCA 1974. As assignees Lowell now bore the responsibility of proving that these charges were not unfair! So a 2 prong defence was drafted, lack of documents and unfair bank charges.

Defence:

1.Paragraph 2 is denied. I accept that I have held a current account with Halifax, I have not serviced this account since 2012 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Halifax. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account which gave rise to an unfair relationship s140A Consumer Credit Act 1974. It is therefore denied that I am indebted for any alleged outstanding residue.

2. Paragraph 3 is denied. I do not admit to defaulting on payments nor receiving Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and the Claimant is put to strict proof to evidence any breach.
3.Paragraph 4 is denied. No reasonable person would expect to be forced to part with money to an unsworn claim made by a junior official of a firm of solicitors without production of original documents to substantiate the claim. They would regard an attempt to do so as dishonest and expect a Court to protect them from it.

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

5. The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.
(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice together with the Notice of Assignment.
(c) Disclose the deed of assignment. (A redacted version will suffice)
(d) Provide a detailed breakdown of all charging/fees levied to the account with justification.
(e) Show how the Claimant has reached the amount claimed.
(f) Show how the Claimant has the legal right, either under statute or equity to issue a claim.
(g) Show that no insurance claim was ever made on this account.
(h) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

6. On receipt of this claim I immediately requested documentation by way of a CPR 18 request, which was received by the Claimant on the 20th August 2018. The Claimant has failed to fully comply with this request. Therefore the claimant in their non-compliance to my requests has frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arises.

I eventully received a letter from the Judge which said that Lowell had to send all documents to him relevent to the case by 19th January. Yesterday I received a Notice of Discontinuance from Lowell. Very happy bunny!

Can I just add that this site has been a great help and thanks to all that maintain it!

Great result,well done.

now apply for reasonable costs in defending this claim

write to the courts requesting your costs and give a breakdown of reasonable costs i would look at around £400