LEGAL LETTER TO BANK, OF PUBLIC INTEREST— HELP SOUGHT
Hello, I am crowd-sourcing advice on the document below as I am neither a lawyer nor a writer.
Mainly, its purpose is to persuade the bank to come into negotiations with me for an out-of-court settlement.
It is important as maybe my last chance to head off a further court battle (after 2–1/4 years already of court proceedings).
As the contents of the letter show, in my view, it is also of public interest, relevant to New Zealanders holding or contemplating a bank loan.
Any comments or advice to improve it would be much appreciated!
Friday, 15 April 2015
%%/%% [lawyers’ names]
Private Bag 92518
BY POST & BY EMAIL
Seeking consent for r 29A time extension in CA810/2013
1. Pursuant to r 29A(2) of the Court of Appeal (Civil) Rules 2005, I hereby seek [The Bank]’s consent for an extension of time to appeal in the proceeding CA810/2013 (the proceeding).
A brief history of the dispute
2. As [The Bank] is aware and as is documented below, the dispute between [The Bank] and I (the parties) began with a false accusation against me by [The Bank] and has extended to [The Bank]’s improper sale of my home, as follows:
a. [The Bank]’s accusation: since July 2010, [The Bank] has disavowed a formal loan agreement signed in 2008 between [The Bank] and I, and has been accusing me, falsely and recklessly, of misconduct for having drawn down the $75,000.00 loan amount made available to me by [The Bank] pursuant to that agreement;
b. [The Bank]’s bullying: on multiple occasions since raising this false accusation, [The Bank] has taken advantage of its dominant bargaining position to bully me in a manner prejudicial to my financial well-being;
c. [The Bank]’s order to bankrupt me as a remedial action: on 11 July 2012, [Mr M], an officer with [The Bank], issued an internal instruction for [The Bank] to proceed towards bankrupting me as a remedial action for my complaints over [The Bank]’s persistent bullying;
d. [The Bank]’s undermining of home purchase offer: around the beginning of February 2013, [The Bank] made a show of engaging in, but then improperly refused to engage in, a firm proposal from a [Mr R] for the half purchase of my home. But for [The Bank] improperly blocking [Mr R]’s proposal: (i) I would still be residing in my former home and (ii) my debts to [The Bank] would have been fully cleared and with significant funds left over for me; and
e. [The Bank]’s sale of my home at undervalue: on 3 April 2013, [The Bank] sold my home at undervalue in a mortgagee sale; and
f. [The Bank]’s continuing efforts to bankrupt me: [The Bank] continues to pursue its stated objective of driving me to bankruptcy.
3. Since 5 February 2013, the parties have been involved in court proceedings around this dispute.
Contemporary written evidence is determinative
4. As [The Bank] is also aware, the history outlined above is fully supported by the contemporary written documents, including but not limited to:
a. Documenting [The Bank]’s accusation:
The contrast in probative value of the documents supporting the respective positions of the parties is stark:
i. The 2008 loan contract was of course governed by a formal loan agreement, copied as Annex A, which was drawn up by [The Bank] and signed by both parties. Its authenticity and the terms and conditions it records are not in dispute; and
ii. Materials that [The Bank] relies on in support of [The Bank]’s accusation, showing loan terms and conditions incompatible with those in the formal loan agreement, were submitted in Annex “P” of [Mr M]’s affidavit to the Auckland High Court of 14 March 2013. That annex is copied here as Annex B. That annex appears on the face of it to comprise a cut-and-paste collage from several computer printouts of [The Bank]’s internal records.
As is common ground, I had no exposure to the internal [The Bank] records of (ii) around the time of the 2008 loan contract. It is clear they do not form any substantive basis for disputing the terms of the formal loan agreement of (i).
b. Documenting [The Bank]’s bullying: the numerous letters[footnote 1] exchanged between the parties record [The Bank]’s improper conduct towards me flowing from [The Bank]’s accusation;
c. Documenting [The Bank]’s order to bankrupt me as a remedial action: [The Bank]’s internal log for 11 July 2012 records the instruction from [Mr M][footnote 2]:
proceed to judgement customer has a history of complaints
d. Documenting [The Bank] undermining home purchase offer: The 4 February 2013 email exchange between the parties, copied in Annex C, comprises:
i. At 8:22 am: [Mr M] requested a signed permission letter from me as a prerequisite for [The Bank] to engage with [Mr R] (“[The Bank]’s request for permission”);
ii. At 8:52 am: I emailed to [Mr M] my signed letter granting permission for [The Bank] to engage with [Mr R] (“my letter of permission”); and
iii. At 09:15 am: [Mr M] demanded, without referring to [Mr R]’s proposal and without having contacted [Mr R], upfront payment of my alleged debt to [The Bank] in order to cancel the mortgagee auction on my home (“[The Bank]’s demand for payment”).
On 5 February 2013, at the Auckland High Court, [The Bank]’s failure to properly advance [Mr R]’s proposal was found to disclose a serious issue to be tried[footnote 3].
e. Documenting [The Bank]’s sale of my home at undervalue: it is on the public record that [The Bank] sold my home at mortgagee auction for the amount of $217,000.00 and the new owner then promptly on-sold the property for the much higher figure of $299,000.00.
f. Documenting [The Bank]’s continuing efforts to bankrupt me: on 31 March 2015, [The Bank] served me with a bankruptcy notice.
Amicable settlement the preferred course of action
5. My letter to [The Bank] of 2 March 2015 lays out a detailed proposal for an amicable settlement that amounts to fair compensation for my losses. Updating the amounts, at  of that March 2015 letter, from items aand b upon applying interest according to c, and with an end date of [%this letter’s release date], to be $%% and $%%, respectively, summing to $%% (the summed amount at [%date]).
6. In accordance with that proposal, I request that the summed amount at [date] be paid into my account, [Acct. no.], and the other items actioned appropriately by 5:00 pm, [%3 weeks from this letter’s release date].
7. That would bring our dispute to an immediate and amicable end, as is in the best interests of both parties.
My submissions to [The Bank]
8. I now put it to [The Bank] that:
a. As outlined above, [The Bank]’s position in this dispute is untenable;
b. [The Bank]’s interests are best served by an amicable out-of-court settlement such as outlined above;
c. If [The Bank] chooses to persist in this dispute despite [The Bank]’s hopeless position then [The Bank]’s next best option for resolution lies in the New Zealand courts of law.
d. [The Bank] giving consent under r 29A(2) will facilitate that putative court process. If [The Bank] declined consent then that process would instead proceed anyway but through the more complicated route of r 29A(4); and
e. [The Bank] would be ‘jumping from the frying pan into the fire’ in any hypothetical future scenario where this dispute would progress beyond New Zealand’s courts of law and into ‘the court of public opinion’. To illustrate just with one fully documented example, from (a) and (a) above, [The Bank]’s disavowal of its own formal loan agreement would raise serious and damaging public questions about [The Bank]’s trustworthiness as a lender.
9. In the circumstances, I put it to [The Bank] that [The Bank] should consider its position in this dispute and be mindful of [The Bank]’s public reputation.
10. At minimum, I request [The Bank]’s consent under r 29A(2) for an extension of time to appeal in the proceeding CA810/2013.
11. More substantively for ending this dispute, [The Bank] is requested to seriously engage with me in seeking an amicable out-of-court settlement such as outlined above.
[Version 2015–05–15 @ 14:20; incorporates comments from @retroDoomer]