RBS taking me to court - *Struck Out* ** New claim issued by RBS **

[dpac123]

Anybody?

[Andyorch]

The above looks like a Witness Statement not a defence:wink:

 

Just format the above into a Witness Statement (Introduction....the claim...your arguments......conclusion)

 

 

Post here and Ill have a look.

 

PS It will require a Statement of Truth.

 

Regards

 

Andy

[dpac123]

Hi Andy, it's very similar to the witness statement you helped me with last time. Should some additions be made re: the new default notice, etc or is it sufficiently covered? Are RBS likely to take this all the way?

[Andyorch]

Have you got their Witness Statement yet?

[dpac123]

No, they emailed to agree simultaneous exchange on Monday 23rd at 4pm.

[dpac123]

Hi Andy, witness statement below:

 

 

Mr and Mrs

Address

Date

Claim number

 

BETWEEN:

MR AND MRS:DEFENDANTS

NATIONAL WESTMINSTER BANK PLC:CLAIMANT

WITNESS STATEMENT OF MR AND MRS

 

I, MR, of ADDRESS, and I, MRS, also of ADDRESS, will say as follows:

1 This statement is made in opposition to the Claimant’s Case and by which the Claimant contends we have no real prospect of successfully defending the claim against us.

2. We have received a copy of the credit agreement relating to account number 12345 together with terms and conditions referred to in the credit agreement.

3. We have received two default notices from the Claimant for account number 12345. The original default notice, received in 2009, is invalid for the following reasons:

• The Loan Account Number is incorrect.

• The amount of arrears stated is incorrect.

• The date in subsection 1 is XXX 2009, which is less than 14 days after the date of service (YYY May 2009 + 2 days allowed for postage) – see the Consumer Credit Act 1974 Section 88(2) which states: A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

4. The second default notice was dated ZZZ 2013 although the account was closed by the claimant in 2009 (see point 11 below).

5. The Experian report for MR dated March 2014 shows the second default was registered on 31/03/2013 and that there have been 40 clear payments since the beginning of the loan. If this is correct, the claimant will have proof of these payments and the balance would be considerably lower than £AAA. If this is incorrect, the claimant has made significant errors in their reporting of our personal data to credit reference agencies and is in breach of the Data Protection Act 1998.

6. If the second default notice registered on Experian on 31/03/2013 is correct and payments were up to date during 2011 and 2012 as the Experian report shows, we would like to know why we were taken to court in 2012 and why the original, defective default notice was relied upon at that time.

7. We received a recall termination notice for an overdraft on account number 23456 which gave until 25th May 2009 to make an alternative arrangement for repayment but did not include a date of service or a signature.

8. We received a recall termination notice dated 25th March 2013 for an overdraft on account number 23456, although the account was closed by the claimant in 2009.

9. A default notice was registered on Experian on 30/04/2013 for account number 23456 although the account was effectively closed by the claimant in 2009 (see point 11 below).

10. We have never received an explanation as to why funds were moved from account number 23456 on 23rd February 2009 to account number 12345 in full knowledge that there were insufficient funds in this account and for the express purpose of creating an overdrawn position to create a fee. The Claimant will be put to strict proof that manual intervention was applied to the Current Account.

11. With reference to BCOB rule 5.1.1 and the example of unexplained peremptory closure of accounts, we can confirm that although account number 23456 remained open so that bank charges could accrue and so payments could still be made into the account, our access to the account was terminated on or around 5th February 2009. This termination was characterised by us not being able to access the account online or via an ATM. We will be relying on the terms and conditions within the facility letters to clarify that the termination of the overdraft complies with BCOB rule 5.1.1.

12. It is averred that if the Claimant cannot produce the facility letters stipulated under Conditions 2(b) and/or 2© of the Determination as set out above, they cannot therefore claim exemption from Sections 57 to 63 of the CCA 1974. Furthermore, the Claimant will be put to strict proof as to whether it has complied with Condition 2(a) above. In that respect, we refer the Court to the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005).

13. Notwithstanding the above we will contend that the overdraft balance was accrued penalty charges in its entirety levied by the Claimant.

14. In the circumstances we contend that until such time as the Claimant has established a legal entitlement to payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine that we have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

15. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that we will be able to successfully defend the Claimant’s claim at trial.

STATEMENT OF TRUTH

The defendants believe that the facts stated in this Witness Statement are true.

Signed: Signed:

Mr Mrs

Dated: 23rd June 2014

[Andyorch]

Thats fine dpac...I see you have referred to BCOB you could also refer to Unfair Relationship sections 140A to 140D of the Consumer Credit Act 1974 (CCA).

 

If you have never received Notices of Sums in Arrears since the default then perhaps also reference same.

 

A new amendment has been made in case of failure to give notice of sums in arrears in CCA 1974. Section 11 CCA 2006 inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement.

 

Regards

 

Andy

[dpac123]

Hi Andy, is there enough in the statement as it is rather than make late amendments? The fact that they took it to court with an incorrect default notice and then decided to reissue a default notice after the initial court action - is this enough to stop it dead? Thanks, D

[Andyorch]

Without a crystal ball dpac its impossible to say...a lot depends on how sharp the DJ is.I would certainly add the Notice of Sums in Arrears section...it carries as much leverage as the unfair relationship legislation.

 

Regards

 

Andy

[dpac123]

Hi Andy, they issued default notice of sums, so I didn't include this - the main error was the original default notice and subsequent pursuit of an account which has arguably been closed.

 

 

I have submitted my witness statement and just received theirs along with 103 pages of exhibits. I didn't know that I needed to submit exhibits and haven't done so - is this a problem? Their witness statement is quite aggressive and they argue that they issued a correct original default notice and are therefore entitled to pursue. They highlight the default of sums and failure to comply letters, both of which seem ok, but have conveniently omitted the default notice itself, which is in error. When they requested standard disclosure documents, the original default notice was one of the documents they didn't want to see.

 

 

Their witness statement is a monster 8 pages - can I send it you via PM or should I edit and post here?

[Andyorch]

Edit and post here please dpac........you could reissue your WS along with the exhibits should you wish to refer or rely on.

[dpac123]

can I rely on documents in the standard list or can I only rely on "exhibits" docs i.e. do I have to send exhibits. Also, what happens now that witness statements have been exchanged - last time we didn't get this far.

[Andyorch]

You can rely on anything refered to within your defence N265 or Witness Statement.If you attach exhibits to the WS then you must copy them also.

 

What happens now is you wait for your trial date.

[dpac123]

Thanks Andy - not looking forward to this going to trial - I thought the defence was strong enough to dissuade them.

[Andyorch]

May well yet....I have know known claimants discontinue the day before trial......once they know you are not concerned re their bluffing.

[dpac123]

I just got the following email from Eversheds:

 

 

Without Prejudice save as to Costs

 

Dear Mr and Mrs Dpac,

 

I write further to our previous correspondence in relation to the above matter.

As you are aware the claim against you continues and the Trial Window for this claim commences on 17 November 2014.

I am of the view that it would benefit both parties if we are able to discuss the issues that are in dispute over the telephone. As such, I would be grateful if you could telephone me at a time convenient for you, or in the alternative, please provide me with your telephone number and I will arrange to call you.

I look forward to hearing from you as soon as you are able.

Kind regards

Should I respond or keep it all in writing? Are they doing this to settle out of court or because they think their case is weak or am I reading too much into this?

[citizenB]

IMHO, I would want everything kept in writing unless it could be recorded. But wait while andyorch looks in, I don't think he is online at the moment.

[Andyorch]

Obviously your WS has had the desired effect dpac....

 

Make arrangement by supplying your phone number (at their cost) and have a chat and see what they wish to resolve....its all without prejudice so makes no odds...may even come to a settlement....you should always embrace any offer of mediation.

 

Regards

 

Andy

[dpac123]

Hi Andy, could you remind me why this defence is valid because it relates to an invalid default notice and termination of a loan account and termination of an overdraft facility? I understand this wouldn't be valid for an invalid DN for a credit card - could you please explain the difference, thanks, Dpac

[Andyorch]

You will have to bring their particulars and the defence forward dpac ...not got time to trawl your thread.

[dpac123]

This is the defence statement:

 

 

Our defence is below, could I get some help with drafting the witness statement? Many thanks,

 

D IN THE ABC county court CLAIM NO: DEF BETWEEN:- National Westminster Bank (Claimant) V MR DPAC (First defendant) MRS DPAC (Second defendant) DEFENCE TO SUBSTITUTED PARTICULARS OF CLAIM BY ORDER OF DISTRICT JUDGE DATED 3 MARCH 2014

 

1. We have received a copy of the credit agreement relating to account number 12345 together with terms and conditions referred to in the credit agreement.

LOAN AGREEMENT

 

2. We have received two default notices from the Claimant for account number 12345. The original default notice, received in 2009, is invalid for the following reasons: INCORRECT DEFAULT NOTICE RELATES TO A LOAN

 

• The Loan Account Number is incorrect.

 

• The amount of arrears stated is incorrect.

 

• The date in subsection 1 is 25th May 2009, which is less than 14 days after the date of service (11th May 2009 + 2 days allowed for postage) – see the Consumer Credit Act 1974 Section 88(2) which states: A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

3. The second default notice was received in 2013 although the account was closed by the claimant in 2009 (see point 9 below).

 

4. The Experian report for Mr DPAC dated 01/03/2014 shows the second default was registered on 31/03/2013 and that there have been 40 clear payments since the beginning of the loan. If this is correct, the claimant will have proof of these payments and the balance would be considerably lower than £17,221.72. If this is incorrect, the claimant has made significant errors in their reporting of our personal data to credit reference agencies and is in breach of the Data Protection Act 1998.

 

5. If the second default notice registered on Experian on 31/03/2013 is correct and payments were up to date during 2011 and 2012 as the Experian report shows, we would like to know why we were taken to court in 2012 and why the original, defective default notice was relied upon at that time.

 

6. We have received a recall termination notice for an overdraft on account number 23456 which gave until 25th May 2009 to make an alternative arrangement for repayment but did not include a date of service or a signature. RELATES TO OVERDRAFT

 

7. A default notice was registered on Experian on 30/04/2013 for account number 23456 although the account was effectively closed by the claimant in 2009 (see point 9 below). RELATES TO A LOAN

 

8. We have never received an explanation as to why funds were moved from account number 23456 on 21/03/2009 to account number 12345 in full knowledge that there were insufficient funds in this account and for the express purpose of creating an overdrawn position to create a fee. The Claimant will be put to strict proof that manual intervention was applied to the Current Account.

 

9. With reference to BCOB rule 5.1.1 and the example of unexplained peremptory closure of accounts, we can confirm that although account number 23456 remained open so that bank charges could accrue and so payments could still be made into the account, our access to the account was terminated on or around 02/03/2009. This termination was characterised by us not being able to access the account online or via an ATM. We will be relying on the terms and conditions within the facility letters to clarify that the termination of the overdraft complies with BCOB rule 5.1.1.

 

10. It is averred that if the Claimant cannot produce the facility letters stipulated under Conditions 2(b) and/or 2© of the Determination as set out above, they cannot therefore claim exemption from Sections 57 to 63 of the CCA 1974. Furthermore, the Claimant will be put to strict proof as to whether it has complied with Condition 2(a) above. In that respect, we refer the Court to the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005). OVERDRAFT

 

11. Notwithstanding the above we will contend that the overdraft balance was accrued penalty charges in its entirety levied by the Claimant.

 

12. In the circumstances we contend that until such time as the Claimant has established a legal entitlement to payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine that we have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

[Andyorch]

And the particulars dpac please...the above means nothing without the particulars you are responding to.

[citizenB]

And the particulars dpac please...the above means nothing without the particulars you are responding to.

 

 

 

[ATTACH=CONFIG]53136[/ATTACH]

 

 

 

 

[ATTACH=CONFIG]53137[/ATTACH]

[dpac123]

Hi Andy, sorry for the delay. Substituted POC below:

 

 

 

1. The Claimant claims against the first and second defendant repayment of sums due to it under account ending xxxxx (the loan account) pursuant to terms of a loan agreement entered into between the Claimant and the First and Second Defendant.
   
2. In addition, the Claimant against the First and Second Defendant repayment of sums due under current account ending xyzabc (the current account).
   
3. The First and Second Defendant have failed to pay the Claimant the sum of £11,111.11 due under the loan account and the current account (the accounts) referred to above.
   
4. The loan account is regulated by the Consumer Credit Act 1974.
   
5. The Claimant has complied with parts III and IV of Practice Direction – Pre Action Conduct of the Civil Procedure Rules.
   
6. The Claimant has served upon the First and Second Defendant Default Notices under the Consumer Credit Act 1974.
   
7. The Claimant has requested payment but the First and Second Defendant have failed to pay the full sum demanded.
   
8. The Claimant claims the sum of £11,111.11 and interest owing on the balance due, pursuant to section 69 of the County Courts Act 1984 at a rate of 8% from 01/07/2013 until judgement of earlier payment, or alternatively at such a rate as the court thinks fit.
   
9. The claim does not include any issues under the Human Rights Act 1998.
   

AND the Claimant claims:

 

1. The sum of £11,111.11, representing the balance outstanding:
   
2. Interest thereon, as aforesaid; and
   
3. Costs
   

STATEMENT OF TRUTH

The Claimant believes that the facts stated in these Substituted Particulars of Claim are true.

[Andyorch]

What are the ones CB has posted above for dpac £27K ? What is the claim for above?