RBS Mint Loan - Court Action Started & Dodgy DN issues

[gh2008]

check out the requirements for the agreement to be cancellable.

 

Angry Cat has info - I'm not sure whether a phone call counts. IMHO I think that it should

[Pumpkinhead]

OK. I've rummaged through all the paperwork and have found a document that refers to right to cancel in relation to distance marketing regs. This was sent to me when I originally first asked for a copy of the agreement.

 

However, I note that this has not been included with the documentation sent to me as part of my 31.14 request, although I didn't specifically ask for it.

 

My 31.14 request asked for specific documents but also stated "that where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the POC etc ......

 

Do you think I can contend that this means they should have sent the Cancellation/Distance Marketing Regs document I've referred to above and therefore I should tell them them have not complied with my 31.14 request; ask for this additional information (and a copy of the notice of termination which I omitted asking for) and ask for more time before I file my defence?

 

I realise now I should have made a SAR but if I do this now it will take 40 days to get the information. If I can't use my current 31.14 request should I use 31.15 instead?? I am keen to delay matters whilst awaiting outcome of PT case etc

 

I have been reading the thread cupcake68 Vs Egg, in particular posts by Angry Cat - specifically post 149 where he/she refers to the Cancellation Notice/Distance Marketing Regs document having to be in a specific format. I'm not sure that they one they sent me is in the right format. It only appears to be information and not the actual cancellation form.

 

I have posted a copy here for comments. http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/CancellationDistanceMarketingRegula.jpg

Edited June 16, 2010 by Pumpkinhead
additional information added

[Pumpkinhead]

I've just put together my Defence and would welcome constructive comment on it It has to be in by Tuesday this week, so I want to finish it off tomorrow and take it over to the court before they close for the day.

 

Any suggestions welcome in reference to the rest of my case detailed in this thread.

 

Here's hoping for some urgent help.

 

Thanks in advance

Claim Number xxxxx.doc

[johno23]

Good luck with it all. Watching with interest

Johno

[gh2008]

what were the arrears outstanding at the time of the DN.

At 1 point you deny any at another you say you accept that genuine arrears are payable.

 

I think those details certainly need to be included.

 

I'll have a proper read tomorrow, it is a little difficult to read at the moment and I've had too many glasses of wine to know why (it may just be the wine :D )

[Pumpkinhead]

Thanks GH.

 

The arrears were just over £300 at the time the DN was issued.

[gh2008]

are you using the first or the second DN (it should be the first)

 

I've got to go to a client soon, but i will be back.

 

IMHO you need to defend using the original DN - the default was not rectified (or was it) and therefore that DN is the relevant one.

Did they send statements after that one?

 

They are quite clear that they will terminate after the DN.

 

So your figures should use the first one BUT also mention the second but say it is ineffectual as the account was terminated, but also it was defective too etc.

 

In your defence you need to spell out the defect - actually show the days in a little table or something.

 

I'll be back around lunchtime hopefully

 

pm M&M, he'll help as well

 

you also need to include why it is only arrears @ termination you owe. Which is the fact that because of s.87 they are NOT ENTITLED to SUMS NOT YET DUE. They have to serve a compliant DN to become entitled - they haven't so they're not

[Pumpkinhead]

Have PM'd m&m.

 

Have also thought to ring solicitors and ask them to give me more time to file my defence as I've only just received the requested info from them.

 

They have now given me until end of June to file my defence so that buys me a bit more time thankfully.

 

I will drop a line to the Court explaining the extension granted.

 

Good point Gh - yes, I'd overlooked the fact there was a previous DN. I've based my defence on the second one and this is the only one referred to in the POC.

 

As regards the first DN this was dated 4 Aug 09 and gave a rectify due date of 21 Aug. Bad news is I don't have the envelope but based on how the second DN was posted, it is likely they used 2nd class mail. This would make date of service as 10 Aug with a rectify due date of 24 Aug, so still insufficent days given for DN to be valid. I did date stamp the letter when I received it.

 

The first DN does include the statement that's missing from the second one "This notice should include a copy of the current Office of Fair Trading Information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included you should contact us to get one." The second DN did not include this paragaph.

 

The second DN was posted the day after the letter was dated so this could possibly be their normal practice which would increase the tally of the insufficient days given as noted above. Also, this fits in if they could prove it was sent 1st class as then the date of service would be 7 Aug with their rectify due date of 21 Aug being correct.

 

In terms of payments I'd made, its still just the £98.

 

So, they've served two DNs both of which I believe to be defective and therefore invalid. Only one Termination notice (after the second DN).

 

Should I refer to the first DN or go with the second????

[gh2008]

you should get 14 days after having the info. So yes, if you have only just got it, ring them and if they agree write to the Court and let them know, if they do not agree tell them that you will apply to the Court for more time and costs as they are acting unfairly.

 

now I've read you post properly you've done all that

Edited June 21, 2010 by gh2008
didn't read ph's post properly only teh first line!!

[Pumpkinhead]

Have rung Sols and they've given me to end of June. I'm happy with this. They have agreed to fax confirmation of extension to the Court this afternoon. I've also rung and sent a fax to the Court and sent a fax to the Sols.

[gh2008]

Ok, go with the 2nd as they will say the first didn't count and there are more faults with the 2nd.

 

Have they sent you a copy (in answer to your CPR request) does it tally with the one you have?

 

The arrears on the 2nd DN did you payment reach them before issue? did they take that off the arrears outstanding?

[Pumpkinhead]

They have sent a copy of the second DN with the CPR31.14 docs and it does tally with the original I have.

 

No, I made the 2 small payments in Dec and Jan, so after the DN.

 

In between the first and second DNs I contacted them explaining I was experiencing financial hardship and tried to set up a payment arrangement. However they did not come back to me and sent the second DN toward end of Sept.

 

In Nov I wrote to them again explaining about my financial troubles and offering a token payment and still received nothing back from them. I made two small payments, one in Dec and one in early Jan then stopped paying altogether as they were hassling me.

 

I then identified that the DN was defective, that they had terminated on the back it which equalled unlawful rescission, so wrote to them in January telling them about their defective DN and unlawful termination and accepting their unlawful rescission. I also asked them to advise me of the amount of arrears due less my two payments and their unlawful charges as this was now all they were entitled to.

 

This time I did get a reply, albeit a very brief one, asking me to "clarify my concerns regarding the handling of your account as according to our records the formal demand was sent after the appropriate period for you to satisfy the Default Notice. As such the company expects full proposal regarding repayment as per the terms of the paperwork issued to you."

 

Basically they chose to ignore what I was telling them about the DN being defective.

 

They did use the two payments to reduce the arrears outstanding.

[gh2008]

So you have 2 issues with the DN, neither of which are de-minimus.

 

1. not enough time to remedy.

2. not including mandatory info.

 

They also completely ignored your 'cries for help' which will also go against them.

 

You have clearly informed them of their failings BEFORE they issued a claim against you. So, they have entered litigation KNOWING their case is critically flawed - oh dear

 

certainly unfair maybe even abuse of process .....

may have costs implications for them.

 

As we have more time I'll wait for other input as well.

 

Well done - looks like you're building up a good case

[Pumpkinhead]

It never fails to amaze me how rubbish (thankfully, in my case) thesefinancial institutions are. How many years do they need to get things right???? It's no wonder we've had such a crisis in the banking industry. I suppose at the end of the day they rely on fear to get the money in.

 

Maybe everyone with a DN from RBS/Mint since Sept 09 should check to see if the paragraph mine is missing is also missing on theirs.

[Pumpkinhead]

OK. I want to get my Defence finished off now.

 

Gh in your post 19 on this thread you say that in 1 point I deny any arrears but later on admit some.

 

Are you referring to Point 9 of my defence? If so, what I was trying to get across here was that I had paid £98 since the DN was issued. Are you saying that as this payment was made later on that it shouldn't be considered as a partial arrears payment? Would welcome your clarification.

 

Also do you think I should include the information in my post 26 in the Defence.

 

The Defence is already running to 7 pages. Am I at risk of turning the Judge off by sending too much???

 

Should I put in the points raised in your last point about abuse of process etc and ignoring my cries for help?

 

No reply as yet from M&M or any other Caggers, apart from your good self Gh.

 

Would the inclusion of a time line in the Defence be worthwhile?

Edited June 24, 2010 by Pumpkinhead
additional text

[Pumpkinhead]

Can someone just check my DN timeline for me please

The DN is dated 23/09/09 but the 2nd class franking postage mark on the envelope shows 24/09/09. I take this as the letter having been posted the day after it was created.

 

Allowing 4 working days of service for 2nd class post, I believe this makes 30 Sept as the Date of Service?

 

As regards the rectify date which needs to be 14 days on, I make this as being 15 Oct? Or should it be the 14th??

 

Just want to get everything right for my defence.

[Pumpkinhead]

I have spent all day revising my Defence and attach version 2.

 

Please can I have input from some Caggers out there.

[Pumpkinhead]

Just realised I failed to attach my Defence Version 2. Was wondering why I hadn't heard from anyone

 

Here it is.

Defence Version 2.doc

[pumpytums]

Looks good, so good I've taken a copy I hope you don't mind

 

Only one thing that I can see, is how are you referencing your evidence for example your copy of the DN the envelope etc.

 

Pumpytums

[Undercover-Elsa]

Also, take a look at Diddydickies defence in the case he won recently, there may be points you can use:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-129.html#post2976147

 

Elsa x

[Undercover-Elsa]

I'm a bit concerned about their argument that, despite the time given on the DN, there was adequate time before they took further action. We need to come up with an argument to trounce them on that.

 

If I were you I'd hit the red triangle for the site team to help too.

All hands on deck!

Elsa x

[Pumpkinhead]

Thanks Undercover Elsa and Pumpytums for coming to the rescue. I've hit the triangle as suggested and will read up on DD's thread.

 

I can see what you're saying Undercover Elsa about their argument

 

I'm a bit concerned about their argument that, despite the time given on the DN, there was adequate time before they took further action. /QUOTE]

 

They sent notice that the account had been terminated one calendar month after the date of the DN. My argument would be that their DN stated a date by which remedial action had to be taken and that stated on the DN in the section headed Further Action that "We will, by written action terminate the agreement ......" as opposed to We may. Therefore the only logical conclusion that could be drawn was that the default had to be rectified by the date they had given - and that date of course was 5 days short.

[gh2008]

DD's case was more about a dodgy agreement and DN served after termination though ...

 

M&M's thread v Egg is better pretty much the same circumstances with £25k at stake

 

I'll dig it out

 

I'm ploughing through the doc sorting out the formatting and a few errors so don't do anything to the original till I post it back. Once I've done it it will be much easier to make any changes as the paragraphs and pages will stay together and you won't end up with it going all 'staggery'

 

Shakespere v Amex is another pure 'not enough time on a DN' case

[Pumpkinhead]

Thanks Gh. I'll read up on the threads you mention above. Money at stake here is just over £5k.

[gh2008]

In order for them to become entitled to sums not yet due they need to serve a valid DN.

 

Doesn't matter how long they wait, but they *must* serve a valid DN

 

Their problem is that they then terminated (also not entitled to do). But even though they are not lawfully allowed to the Law accept that it (the Law) can be broken and that the Law breaker must live with the consequences.

 

At that termination they are only entitled to sums already due at that point i.e. arrears.

 

As an aside I can see more and more creditors just issuing a DN but keeping the account running until the arrears = the balance and then claiming as that is a *much* more straightforward route for them and is much more difficult to argue against. Cabot have started the trend already.