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Hi hope someone out there can give me some advice .I recived a writ from RBS regarding 15k unscured loan and 1.5k overdraft .I have been in a dmp for 2 years but recently reduced payments rbs not accepting new offer and have now started legal action at glasgow sherriff court.I filled in form 07(nid) and returned to court i am looking for some help in drafting a defence.I sent a cca request on 17/12/08 it was recieved on 24/12/08 no reply yet but i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it. When i took the loan originally i was forced to take their PPI(which i got cancelled 2 years ago but no refund)also i was never given a copy of the agreement.Any advice would be appreciated thanks
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Hi hope someone out there can give me some advice .I recived a writ from RBS regarding 15k unscured loan and 1.5k overdraft .I have been in a dmp for 2 years but recently reduced payments rbs not accepting new offer and have now started legal action at glasgow sherriff court.I filled in form 07(nid) and returned to court i am looking for some help in drafting a defence.I sent a cca request on 17/12/08 it was recieved on 24/12/08 no reply yet but i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it. When i took the loan originally i was forced to take their ppi(which i got cancelled 2 years ago but no refund)also i was never given a copy of the agreement.Any advice would be appreciated thanks
Hi Leedoe, i take it you are still paying RBS through dmp ?. When you requested CCA from RBS, legally they have 12 days +2 to supply CCA, which they have not done, there are template letters on this site to copy, the first letter requesting the CCA, which is advised to be sent by first class recorded delivery, with a postal order for £1.00, and dont sign the letter, there is a follow up letter after the time is up, i advise you to look at the letters, it looks for now that the debt is unenforcable, unless the bank produces a valid CCA, keep on this site and you will get the full advice you need to sort out the bank, im still learning and there are other site members with far more experiance.
Thanks blueda what i now need to know is does my defence need to be in by a certain time i put my NID in on 5/01/09 also i would appreciate some help in constructing a defence if anyone can help
I dont see this going to court, especially if you use the information available on this site, ive been threatened with court action before and the nearest it ever got was one time in 2003 when the dmp i was with was found to be crooked and RBS had not been payed for a time,result a Kilmarnock sheriff court decree on my credit file. They need a valid CCA on the account to do this. Im going to contact a Platinum site member to visit this thread and give you the further advice you need.
Above is the link to the letter templates listed in alphabet order, letter N is the DCCA request and other letters, keep visiting this site and keep in touch.
Leedoe, regarding the PPI, many of these policys have been mis-sold as they often do not cover the customer ie if you are self employed, you may be entitled to a refund plus interest if you follow the guidlines. It is a bit quiet on this forum today, it is uasually busier. Any way dont panic as the way i see it the bank does not have a case for letting this go to court.
Hi rory the initial writ states CONDESCENDENCE first part is just about jurisdiction .No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numberedxxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.The said sum is repayable on demand.No4The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.PLEA IN LAW The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.Decree therefor should be granted as craved.The bank told me over the phone the agreement was lost.I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .Recieved court timetable today my defence has to be in by19/01/09.Any adjustments to the writ or defences by 13/03/09.preliminary pleas and grounds in by23/03/09andOptions hearing on27/03/09. any help you can give would be appreciated.
Hi leedoe
I assume that this is an ordinary cause action.
You have filed form O7 (NID) so you now have 14 days to prepare a defence. I am in the same position as you but with a credit card. The Scottish process is very different to English jurisdiction but the legislation that you will be using in your defence is the same (i.e. 1974 CCA and SI
Can you clarify if you have received the "Intimation of Options Hearing" yet from the Sheriff Court Service? This will show the dates that you must conform to in respect of a defence, adjustments and options hearing if it gets that far.
What are you planning to do? go for a non-enforceable credit agreement
Can you post up the agreement, default notice and any key pieces of information minus any personal details? I am slightly ahead in my defence and action and have spent the week reading "Civil Procedure and Practice" by Hennessy which is worth getting hold of if you can. It explains the whole process for Scottish civil actions.
The first stage of the defence and plea-in-law within the Scottish process is to answer each statement made in the Condescendence section (this is really the English equivalent of the POC). You need to watch out though since some statements will include both items that you want to admit (i.e. the agreement is regulated by the CCA 1974 Act) BUT not admitted (i.e. the agreemment is regulated by the CCA 174 Act as amended).
You should use one of the responses below to each statement in the Condescendence;
1. Admit ("it is admitted that...")
2. You don't know ("It is not known and not admitted that...")
3. Deny ("It is denied that.........")
4. If you have an explanation, ("It is explained that.......")
The response must be honest though.
At the end of your defence and response you will need to give a plea-in-law, however this can be changed during the process as the Defender and Pursuer make adjustments to the writ and defence. I have used the following:
PLEA-IN-LAW
1. The documentation provided by the Pursuer to the Defender under a Subject access request and a formal request made under Section 78(1) of the Consumer Credit Act 1974, do not conform in form or content to Section 60(1) of the same Act and as such are unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuer as unenforceable.
2. Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed.
3. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.
In respect whereof
Signed ......................... ......................... ...............
If you have not received all the documents that they mention in ther writ then you will need to do an Incidental Application to the Sheriff which is a request to grant an order to have the Pursuers disclose these to you. I am doing one at the moment.
Hi rory the initial writ states CONDESCENDENCE first part is just about jurisdiction .No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numberedxxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.The said sum is repayable on demand.No4The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.PLEA IN LAW The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.Decree therefor should be granted as craved.The bank told me over the phone the agreement was lost.I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .Recieved court timetable today my defence has to be in by19/01/09.Any adjustments to the writ or defences by 13/03/09.preliminary pleas and grounds in by23/03/09andOptions hearing on27/03/09. any help you can give would be appreciated.
Sorry, just spotted you have the Information of Options Hearing from the Sheriff so you need to prepare a defence by 19th Jan. You need to post up the docs minus any personal information. I can share my defence with you and help as much as I can. I am not a lawyer though and simply relying on using Hennessy's book on Scottish Civil Procedure and Practice plus a few tips from various people.
It maybe that you lodge a defence and they drop the action. The options hearing will be a challenge and any subsequent legal debate would almost certainly need a lawyer.
I have spoken to a few firms but they either do not have any experience of civil litigation relating to the CCA 1974 or just say you have no chance and to admit. Drummond Miller wanted £5 K and £2 K up-front, he still knew less than me! So I decided to have a go on the basis that if you don't defend then they get judgement in their favour so its a no brainer really.
Hi Monty2007, there is no mention of any documents in the writ, only the amount of the loan and the overdraft, I have posted up the condescendence as it is worded exactly and as you can see there is no mention of any documents. So my question would be is my defence an unenforceable agreement? and how do I go about getting the relevant information, i.e, any charges on loan/and charges on overdraft and any other paperwork relating to my accounts, also can initial defence be ammended when I get relevant information, also do you have a draft letter to request such paperwork?
Thanks Leedoe
Hi Monty2007, there is no mention of any documents in the writ, only the amount of the loan and the overdraft, I have posted up the condescendence as it is worded exactly and as you can see there is no mention of any documents. So my question would be is my defence an unenforceable agreement? and how do I go about getting the relevant information, i.e, any charges on loan/and charges on overdraft and any other paperwork relating to my accounts, also can initial defence be ammended when I get relevant information, also do you have a draft letter to request such paperwork?
Thanks Leedoe
Dear Leedoe
Then I would suggest denying all of their statements within the condescendence, you must do each in turn and the format and numbering has to be the same and in order. You can then use a similar plea to me. If it is a regulated loan it is strange that they are not using the CCA 1974 act.
This is a suggested draft defence with plea-in-law according to what you have posted.
You need to look at their wording again and check that the numbering is correct and statements within each section. The plea in law is not that important at this point since following your submission (to the Sheriff Court and Pursuers sols) then they will have to respond to each point in your defence. In the meantime you should issue and Incidental Application to have them produce documentation in support of their claim.
Have you undertaken an SAR request on the OC and a S78(1) request? We don't have CPR31.16 in Scotland so an Incidental Application is the next best thing. I am about a week ahead of you so can give you what I know but please remember I am now a lawyer and learning as I go along (literally)!
You will have to modify the CCA request since this is a loan rather than a credit card. You need to clarify what requests you have made in relation to the loan and overdraft. It is odd that they have combined the two together.
You will need to change the defence regarding the overdraft. Overdrafts have part V (form and content) exemption from the Act so the copy of the agreement would simply be a letter from the bank.
You will need to change the defence regarding the overdraft. Overdrafts have part V (form and content) exemption from the Act so the copy of the agreement would simply be a letter from the bank.
Hi Rory
It is odd that they have failed to mention that there is a regulated agreement (CCA 1974)? I suppose they must have done it on purpose given that they have combined a loan agreement with an OD.
It would be good to see the letter in which the bank admits it does not have the agreement.
need help with court defence
regarding 15k unscured loan and 1.5k overdraft
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Originally Posted by leedoe
