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

[AndyOrch]

So this case is still classified as fast track? 99.9% sure unless its really complex

Do the directions need to be agreed with the claimant? Normally but time is short now They are talking about moving to get a CCJ? Have you submitted a defence? AQ?

Claimant is aware of credit agreement issues and conveniently ignore it whenever I bring it up. Have just recalculated interest rate and it is less than 0.1% out - is this still valid, Tolerance would be acceptable or should I concentrate on getting T&Cs? Concentrate on getting the DN and the Notice served under sections 76(1) and 98(1)

Sorry, TO should be TN - termination notice. Not applicable no separate TN

3. A letter to notified us that our bank account is going to be closed down. That is usually with the Notice served under sections 76(1) and 98(1) - DEFINITELY NOT PROVIDED! Very bad it normally informs you and requests bank cards and cheque books returned and your proposals for agreement

 

To create an overdrawn position and a fee

Presumably this is not in line with the principle of treating customers fairly? see link

 

 

Andy

[AndyOrch]

So at this late stage, should I just ask for full disclosure or mention the violations of BCOB again? Will the judge see this as relevant to the case?

 

Thats all you can do,along with any unfair charges and the way they terminated the account, if you had posted a week earlier we could have prepared, propose directions and don't let the DJ try to conclude.

 

Best of luck

 

Andy

[dpac123]

We submitted the following defence in December 2011:

 

I consider it inappropriate to try to settle at this stage because a dispute still exists between myself and the claimant.

A subject access request was sent to the claimant on 10/12/09 and after much deliberation from the claimant, we finally received some documentation in the second quarter of 2010. This documentation was incomplete for the following reasons:

1. There was no default/termination notice for the loan or overdraft.

2. There was no valid credit agreement for the loan or overdraft.

In addition, the following issues are still unresolved:

1. The claimant does not appear to have taken account of any other potential creditors, who would suffer as a result of any proposed action against us.

2. The claimant closed our accounts without warning. The FOS mention a 30 day notice period:

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/48/banking-closing-accounts.htm

but we didn't receive any such notice. This caused us great inconvenience and incurred further costs with the claimant, which have been added to this claim. We have no documentation to inform us of the claimant's intention to close our accounts or to give us time to make alternative arrangements.

3. The claimant transferred funds from one account to another to cover a loan payment in full knowledge that there were insufficient funds in either account and that such an action would incur additional bank charges.

For these reasons, I would ask the court to deny the claimant's request until such as time as the claimant produces the valid documentation.

 

 

Should we ask for full disclosure or just certain documents?

[dpac123]

Can we adjourn at this late stage to get a case together?

[AndyOrch]

Too late to adjourn less than 24 hours, you request what I have advised above the Agreement and The T&Cs full set of statements Current account and Personal loan account (if required to verify their charges) a copy of the DN for the PL a copy of the Notice served under sections 76(1) and 98(1) for the O/D. A copy of the formal demand issued after the DN/Notice served under sections 76(1) and 98(1).The final notice you should have received is then a Notice stating that your account as been transferred to CMS Telford (Credit Management Services).

 

A copy of the LBA from their Sols.

 

Andy

Edited March 6, 2012 by Andyorch

[dpac123]

What's an Iba?

[AndyOrch]

Letter before Action from IM requesting your proposals and allowing usually 14 days before legal proceedings will commence

[AndyOrch]

Also important to raise the history of the claim re the set a side in case its a different DJ.

 

 

 

 

 

 

In the *************

county court

 

 

Claim number **********

 

 

 

Between

 

************* - Claimant

 

 

 

 

 

and

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

 

o Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

 

o Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983(SI 1983/1561) as amended,for the personal loan and also a copy of the Notice served under sections 76(1) and 98(1) Overdraft.

 

o Formal Notice of Demand and Termination

 

o Copies of any statement Personal loan and Current Account or other document relied upon

 

 

If the Claimant fails to comply withthis order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve thefollowing

 

 

o An amended defence sufficiently particularised in response to the documents supplied by the claimant.

 

 

If the Defendant fails to comply with this order,the Defence will be struck out without further order.

Edited March 6, 2012 by Andyorch

[dpac123]

Many thanks Andy,

 

IM are talking about moving straight for a CCJ. They have said: "Accordingly, no directions will be required in respect of the claim."

Am I still OK to ask for what you have recommended? Is the judge likely to honour this or award a CCJ tomorrow?

 

Also, what does the lba look like? Should they have sent me a copy?

 

[AndyOrch]

Many thanks Andy,

 

IM are talking about moving straight for a CCJ. They have said: "Accordingly, no directions will be required in respect of the claim." They have to agree that with you, not their decision.Both parties have to agree

Am I still OK to ask for what you have recommended? Yes Is the judge likely to Honor this or award a CCJ tomorrow? Who knows depends how you argue your case

Also, what does the lba look like? Should they have sent me a copy? Just a letter with the Sols heading / logo stating Letter before Action

 

 

 

 

Andy

[gezwee]

Ok guys, cool really do with some help here as court is tomorrow.

 

RBS offered a Tomlin order and I filled out inc and exp and returned this. RBS agreed to the amount and sent over a contract for me to sign. The contract states a 6 monthly review and is for the full amount they say I owe. I can see this becoming an open-ended stick to beat me with that will keep getting referred back to court every 6 months as they try to increase my monthly payments. I therefore responded:

Apologies for the delay in responding. We have been seeking direction with regard to the contract you have attached and have concluded that this is not an acceptable way forward for the following reasons:

 

1. The settlement amount is incorrect because it includes interest and charges that we should not be liable for.

2. The review period of 6 months is too short and is too open ended. eg. if we decide we can only afford £20 a month and RBS decide it should be £40 per month, it will go back to court again and we will be back to where we started.

3. There are several violations of Banking Code that will be brushed under the carpet under a Tomlin order. These include, but are not limited to: unfair bank charges, lack of default/termination notice, no consideration of financial hardship, incomplete credit agreement and associated documentation, our bank account was closed with no written or verbal warning (should be at least 30 days), payments were made from one account to another in full knowledge that there were insufficient funds and that this transaction would incur charges), default has been put on our credit files despite this matter still being in dispute.

 

At the court hearing tomorrow we will be asking for full disclosure of all documentation and are considering a counter claim to compensate us for the problems RBS have caused us by violating the Banking Code and to cover additional charges that have been added.

 

Like yourselves we would prefer to resolve this matter outside of the court and are happy to discuss the matter further, but not through a Tomlin order, especially one that is so clearly stacked against us.

 

 

The response we got is as follows:

 

You have made a settlement offer which my client has accepted. So far as it is concerned there is a concluded agreement.

The only remaining issue is the mechanics by which that concluded agreement results in the conclusion of these proceedings.

As you are not willing to accept the terms of a Tomlin Order, then the only alternative is for a judgment to be entered in the agreed terms; namely at the rate of £20 per month. This instalment judgment can be varied by a District Judge upon application at any time by either party.

In the circumstances, I shall ask my agent to request that judgment be entered at tomorrow's hearing.

Accordingly, no directions will be required in respect of the claim.

 

 

Are they correct in what they are saying? A

 

dpac

 

Take 3 copies of the t/o and your response with you to the hearing, just a gut feeling but I believe they will attempt to sway the dj by presenting your i/e without mentioning that it was effective upon w/p correspondence.

 

If they try it on you must advise the dj that it is inadmissable and was not an aquiescence to the alleged claim value.

 

If they want to use it, they'll also have to face the consequences of the court sighting your response and the questions that naturally arise pursuant to part 24

 

That should put a stop to any judgment in their favour in the short term

 

Gez

[dpac123]

Hi Gez, thanks for the advice. I got there this morning and it said "hearing adjourned" - not quite sure why as the judge still wanted to see us! I got grabbed by the agent for the other side before we went in and she started sounding me out about the Tomlin order. I kept on referring her back to my list of queries and in the end we went into the hearing. The good news is it went from a "we are going to apply for summary judgement" to "let's ask the judge for directions".

 

The judge ordered that they address all my queries and we both have 28 days to find all documents we gave and send them over to the other side. There are then 14 to analyse the info and put together witness statements.

 

A bit worryingly the other side produced a default notice. This wasn't in the SAR I requested a while ago, do not quite sure why. They still need to answer all of my other queries is I guess we will see what happens.

 

The agent for NatWorst said the they won't back down on this but also admitted that they probably don't have most of the info (hopefully).

 

So kind of good news so far. Just wondering if I should counter claim for restitutional damages?

 

D

[AndyOrch]

Well done Dpac.

 

Told you they don't call the shots, so the DJ as proceeded this to disclosure (N265) for simultaneous exchange and preparation of WS,s.

Which DN did they come up with PL/ or O/D? Did you submit the Directions I proposed above?

 

Andy

[dpac123]

Hi Andy,

 

Yes I submitted the direction you recommended - many thanks. Not sure which default notice it was - I only got a glimpse and was a bit taken back that they had one. Does it make a difference?

 

D

[AndyOrch]

Not really just like to be prepared in advance, I like the fact that they admit they wont be able to find much else:wink:

So you now have 28 days to complete the N265,(not that you will have much to disclose) follow the timetable (they will confirm this in an Order) don't miss a date.

 

Keep an eye open if they do try to make application for SJ in the meantime.They may also re approach re the TO to try to thrash out one that is acceptable to both parties.

 

Andy

[dpac123]

Thanks for the heads up Andy.

[gezwee]

They may also re approach re the TO to try to thrash out one that is acceptable to both parties.

 

Andy

 

Hi dpac

 

Well done for standing your ground, glad you got a dj who applied the rules

 

Andys comments above may prove to be the way forward

 

As a second string to your bow, perhaps it would be prudent to calculate a sum you would agree to terms. Deduct your time, costs, compound interest, unfair relationship causal upon set-off etc etc.... if you can come up with a figure that would be satisfactory make them a w/p proposal, if it's £1.00 or £10,000.00 matters not, use the time to find an agreeable position for t/o schedule.

 

You'll never get to see their instruction or gauge just how far they're prepared to negotiate unless you table something. May be a simple way to put this to bed at minimal cost exposure.

 

Gez

[dpac123]

Hi Andy,

 

Just a quick question about the default notice - do they need one for the loan and one for the overdraft? What happens if one is missing - does that debt become unenforceable? Ta, D

[AndyOrch]

The personal loan should be defaulted with the usual standard Default Notice served under sections 87(1)of the CCA1974.The O/D should be recalled and terminated by Notice served under Sections76(1) and 98(1)of the CCA1974. So one is a DN the other is a kind of DN but isn't its a Recall/ Termination.

Depends which they have if its the PL that saves their bacon as that is the bulk of the claim, if its the O/D they have that allows them to take the action on the current account they have.Only a copy of the agreement with all its prescribed terms and execution makes it enforceable, which isn't applicable to the O/D as there is no agreement.

 

Andy

[dpac123]

That makes it a bit clearer. So if they have only one default, they can still pursue the other debt? Also, what if they don't have:

 

1. A copy of the formal demand issued after the default notice served under sections 76(1) and 98(1) of the Consumer Credit Act.
   
2. A copy of the final notice stating that our accounts were transferred to the Credit Management Services in Telford?
   

[AndyOrch]

That makes it a bit clearer. So if they have only one default, they can still pursue the other debt? Also, what if they don't have:

 

1. A copy of the formal demand issued after the default notice served under sections 76(1) and 98(1) of the Consumer Credit Act.
   
2. A copy of the final notice stating that our accounts were transferred to the Credit Management Services in Telford?
   

 

Hi Dpac

 

They will try to enforce all either with or without any paperwork, its how awkward you make it that will effect the outcome.If they cant prove legal process as been adhered to then in reality their claim should fail.

 

Andy

[dpac123]

Ok, we sent our standard disclosure paperwork/N265 yesterday but nothing back from RBS. As they have missed the deadline, what should we do next?

[AndyOrch]

Give them a couple or three days grace dpac if still no complience then make application to strike out.Theses are professional litigators (so called)

 

Regards

 

Andy

[dpac123]

Hi Andy,

 

I received a response on Thursday - one day late. I was expecting to receive a bundle of documents through the post but instead received an email with a PDF attached. The PDF is the completed N265 with a list of the documents they hold. The email states:

 

Dear Sir and Madam,

We attach the Claimant's disclosure statement and list of documents by way of standard disclosure.

We confirm that the documents contained within schedule 1 can be made available for inspection at our offices. However, if you require copies please identify the number of each document you require a copy of and they will be provided to you.

We confirm that with regard to the formal demands referred to in schedule 3; templates of the letters will be provided along with screen prints from our client's diary manager system confirming when the letters were sent as part of the Claimant's witness evidence. These have not been disclosed within schedule 1 as they are not primary documents.

However, in this regard, we would refer you to a letter dated xxx which refers to you having received these letters.

In the circumstances, we suggest that you revisit your disclosure.

Finally, our client's statement was faxed to us and is not completely clear. When we are in receipt of the hard copy, this will be forwarded to you.

Yours faithfully,

Firstly I thought they were meant to send me all of the documents they have rather than an invitation that they can send selected documents on request. Secondly, I have noticed that the default notice for the loan has the wrong account number and loan amount (not even close, states £100 rather than £25,000). Have they complied with the court order and given the incorrect default notice, what should I do next?

Thanks, D

[dpac123]

Could do with a bit more advice - the DJ ordered standard disclosure by list by 4th April.

 

I sent my list over to the claimant and all of the documents detailed in the list just to make sure. I got the standard disclosure list from the other side on 5th April (1 day late) and made a request on 13th April for certain documents to be sent to me (DJ said all documents to be provided to other parties by 18th April). DJ then ordered that witness statements should be served to each other on 2nd May. I hadn't received a witness statement from the other side or the documents I requested, so I sent an email to the other side on 10th May to find out what was going on. After some abuse and threats by email, they said they would send my documents back and send me the documents I had requested from them. I have received my own documents back, but not theirs. I also haven't received a copy of their witness statement. The problem is that the case management conference is scheduled for 17th May (this Thursday) and I don't even have the documents! Even if I did, I only have one day to provide a witness statement, rather than 2 weeks.

 

What should I do? Will the court date still happen on Thursday?