Royal bank of Scotland claim.

[Mariner]

Hello all,

 

I hope I'm posting in the right place, I'm sure you'll tell me if not.

 

Could anyone tell me what's happening with this RBS claim. I started trying to deal with it myself before reading this forum, so that was'nt a clever move!

 

 

Anyway - the story so far.

 

25th Jan. Received a claim form from Northampton bulk centre.

Date of issue:- 24th Jan.

Claimant:- Royal bank of Scotland.

Address for payments/documents:- Irwin Mitchell.

Amount claimed including court fee and solicitors costs:- £23,172

 

The notes on the form said date of service would be 5 days from date of issue - so 29th Jan.

 

My wife received the same claim in her name.

 

We have 14 days to return acknowledgement of service and dispute claim or not.

 

 

11th Feb.

Went online to file acknowledgement of service (and dispute the full amount claimed.)

My acknowledgement went smoothly - got confirmation.

My wife's acknowledgement did'nt - password or claim number wrong several attempts later we gave up and sent her acknowledgement by registered post. Received 13th Feb (1 day late.)

 

 

13th Feb.

Sent a CCA letter for each of us addressed to Irwin Mitchell. Received 14th Feb.

 

 

7th Mar.

My wife received a 'Judgement for claimant' saying (briefly.)

 

You have not replied to the claim form therefore you are ordered to pay the claimant £23,617 including costs etc.

The £1 sent with the CCA letter was deducted. This was dated 5th Mar.

 

Incidentally the judgement letter states ' If you ignore this claim your goods may be removed and sold, or other enforcement proceedings may be taken against you etc. etc.

 

Doe's this happen so quickly without any kind of notification of hearing date etc? I rang the court office where I was told that it had'nt been in court - the youth I spoke to was very vague.

 

Is all this standard and I am naive?

 

Any thoughts please.

 

Regards

[paulwlton]

I think you need to make an application to set aside judgment Without delay.

 

If you can post what agreements were taken out etc.

 

Paul

[Mariner]

Thanks Paul,

 

My problem is I don't have any paperwork - it disappeared while moving house last July. This is why I sent the CCA letter. When I rang the court they said they would send a form to dispute the judgement. I have received a form N244 which asks me why I want it set aside, I'll need to see the agreement and the statements to see how this figure (£23,000+) is arrived at. I thought that sending the CCA letter would put this on hold until I received this.

 

Regards

[paulwlton]

You need to fill the application form in and include why you contest the amount... there are a number of points you can use...The bank have yet to provide you with proof of a signed agreement... you believe the amount contains unlawful charges.

 

Did you receive a default notice?

 

PW

[Mariner]

Paul,

 

No I did'nt receive a default notice or any other type of arrears letter in the preceeding few months - incidentally although we moved house last July, we had full access to the old address till the end of Jan this year so no post went astray because of our moving house.

 

I will fill in and send the set aside form (I'm afraid I'll have a few questions about that also.). The £75 fee will eventually be deducted from any agreement I come to with them.

 

Do you think I should do this immediately or let the CCA letter run its course. I believe from reading on here that they are already in default - it was received on 14th Feb.

 

Thanks

[paulwlton]

Paul,

 

No I did'nt receive a default notice or any other type of arrears letter in the preceeding few months - incidentally although we moved house last July, we had full access to the old address till the end of Jan this year so no post went astray because of our moving house.

 

I will fill in and send the set aside form (I'm afraid I'll have a few questions about that also.). The £75 fee will eventually be deducted from any agreement I come to with them.

 

Do you think I should do this immediately or let the CCA letter run its course. I believe from reading on here that they are already in default - it was received on 14th Feb.

 

Thanks

 

If the bank didn't issue you with a default notice then i'm afraid they are precluded from obtaining a judgment... you must make the court aware of this in your application.

 

I'll pm a big hitter on this for you.

 

PW

[car2403]

If the bank didn't issue you with a default notice then i'm afraid they are precluded from obtaining a judgment... you must make the court aware of this in your application.

 

I'll pm a big hitter on this for you.

 

PW

 

Hope you don't mean me there, Paul? :o

 

Anyway, putting massaging my ego to one side...

 

The problem here being that the agreement has already been enforced, by Judgment by Default - whether they were entitled to enforce the agreement at this time should have been a question raised in the defence to the claim, not after Judgment has been entered.

 

So, there are only limited circumstances where Judgment can be set aside - these are; (Civil Procedure Rules Part 13 - PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT)

 

• The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –
  • (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
    
  • (b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
    
  • ©the whole of the claim was satisfied before judgment was entered

• In any other case, the court may set aside or vary a judgment entered under Part 12 if –
  • (a)the defendant has a real prospect of successfully defending the claim; or
    
  • (b)it appears to the court that there is some other good reason why –
    • (i)the judgment should be set aside or varied; or
      
    • (ii)the defendant should be allowed to defend the claim.

    [*](2)In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

 

If you submitted a defence, the Court has to set aside Judgment by Default. Your defence should have been entered by the 26 Feb, so that doesn't work.

 

If you didn't, they may set aside Judgment, but only if you can show you have a real prospect of defending the claim or you should be allowed to defend. The fact they haven't yet complied with your CCA request should mean you have a prospect of defending, IMO.

 

The key now is speed - if your application to set Judgment aside isn't "prompt", the Court may dismiss it.

 

You will need to do the following - today, if possible;

1. Send off a CPR Part 18 request for more information;
    
   

   
   

   [Your name]

   
   [Your home address]
   
   17 March 2007
   

   
   

   
   

   CPR PART 18 - REQUEST FOR INFORMATION

   
   

   
   

   
   

   
    
   This letter must go via Special Delivery - don't use Recorded - as soon as possible.
   
2. Send off a s.7 DPA SAR;
    
   

   
   

   [Your name]

   
   [Your home address]
   
   17 March 2007
   

   
   

   
   

   Account number; [Enter your account number]

   
   s.7 DATA PROTECTION ACT 1998 – DATA SUBJECT ACCESS REQUEST
   

   
   

   
   

   This letter must go via Special Delivery - don't use Recorded - as soon as possible. Send a postal order for £10 - not a cheque, as it will have your signature on it.

I'll post next about the application. (RSI!)

[car2403]

Ok, application to set judgment aside...

 

The form you need is a N244 Application Notice - this can be found here, to fill in online;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf (the link will work when you click it)

 

This needs to be filled in like this;

 

On the top right of the form, complete all the boxes using the information from the claim form.

 

The box at the top left of the form should have 1.a) ticked - "at a hearing", with a time estimate of "0 hrs 30 mins" entered. Number 3 should have "no", not agreed by all parties, ticked. At number 4 just enter "N/A". "District Judge" is the level required at number 5 and "The Claimant", should be entered at number 6, parties to be served.

 

In Part A, number 1, enter the name of the Defendants and put a line through "on behalf of" and "the claimant". At number 2, enter "the judgment dated [ENTER THE DATE OF JUDGMENT] be set aside and the Defendant be allowed to defend the claim". At number 3, enter "the defendant has a real prospect od successfully defending the claim".

 

In part B, tick the box that says "the attached (witness statement)" and cross through "affidavit".

 

Sign the form and enter your address and contact details at the bottom.

 

What we need to do now is think about reasons why you could successfully defend the claim.

 

So far, I have;

• Assignment / notice of assignment
  
• Correct amount on any default notice
  
• Correct amount on claim form
  
• Enforceable credit agreement
  
• Penalty charges / collection charges.

I'll need to have a think about wording of this though, as this will be a "holding defence", until they've proven their case against you. (and I now have RSI again!)

 

By the way, please, please, please come back to CAG if/when you get a response... we much prefer managing a claim from the start rather than having to "pick up the pieces". That's my lecture over...

 

 

Can you post up the particulars of claim also, please?

[car2403]

The Defence statement will look something like this; (tomterm8's moonhawk defence, credit where it's due!)

 

DEFENCE

 

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the account number of the agreement, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

Further to the case On DATE I requested the disclosure of information vital to this case from the claimant, in respect of each alleged debt the Claimant has failed to produce any of the information requested. The information requested amounted to copies of the Credit Agreement and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

 

The claimant has indicated that they have had substantial difficulties in obtaining this information in time for me to file my defence due to the postal strikes, and has undertaken to provide it as quickly as possible. I therefore respectfully ask that the court grants me permission to amend this defence when I have received the necessary information.

 

 

With respect to the claim, it is denied that I am liable to the claimant as stated in the claim, or at all:

 

 

 

Having requested a copy of the credit agreement, which has (thus far) not been produced by the claimant I put the claimant to strict proof that such a document exists, in all respects compliant with the consumer credit 1974. In the absence of such a document, I deny that there has been any failure to make payment in accordance with any alleged contract.

 

The Claimant having failed to produce a copy of a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

In respect of that which is denied, during the period in which the Account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

 

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

 

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester v Swaine ) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

Further, the claimant states that I have refused to pay sums due under agreement. In its particulars of claim, it has not explained under what terms of any agreement these sums were due and I put the claimant to strict proof that said monies are due.

 

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

[Mariner]

Thanks to all, I will take some time to study your posts and then get back on here.

 

Regards

[Mariner]

Hello again,

 

A couple more points have occurred to me.

 

1. I did'nt make it clear that although I said in our acknowledgements of service that I disputed the whole debt - this was so that it reflected what was said in the CCA letter request ie.'I do not acknowledge any debt to your company etc.' I do however owe RBS something but not the ludicrous amount claimed.

 

2. I think this is actually two accounts - a loan and a current account which was used to service the loan. If this the case then my wife has been awarded a judgement against her which is partly (I don't know how much until I get the statements etc.) for an account which is clearly not hers - the current account was only ever in my name.

 

Why do you think that only my wife has a judgement? Is this a tactic so they can go after me at a later stage?

Is it too late for me to send off a defence if I have'nt had a judgement yet?

 

Once again thanks for your speedy and informative posts, I will be sending the suggested letters tomorrow.

 

Regards

[car2403]

It's up to them to prove their case - we aren't going to be doing any of that for them here.

 

Is the Judgment only in your wifes name, or are you both named on it?

[Mariner]

Hello again,

 

Yes the judgement is in my wifes name only - I still don't understand why. As I said we both got a claim form, so I sent seperate CCA letters for both of us, and filed seperate acknowledgements of service.

 

I made a mistake in my last post when I said that the current account was mine only - it was originally - but we changed to a joint account.

 

Finances were much easier when I only had a Post Office savings book.

 

Thanks

[paulwlton]

Take a look... not receiving a default notice is one of the reasons for set aside.

 

 

Removal of CCJ's - Valid reasons to have your judgements set aside

[car2403]

Take a look... not receiving a default notice is one of the reasons for set aside.

 

 

Removal of CCJ's - Valid reasons to have your judgements set aside

 

A Default Notice is a pre-litigation action for any debt under the CCA - s.87/s.88. Without one, any subsequent action would be unlawful, which is why it forms part of the defence.

[Mariner]

Thanks Paul and Car2403,

 

This is all becoming clear in my head and all paperwork will go off tomorrow without a doubt. Much appreciated, I WILL keep you posted.

[Mariner]

Hello again, just an update.

 

Yesterday I sent the form and £75 for set aside of judgement. I'll wait and see what happens there. If the judgement is set aside, doe's that mean the case will be moved to a court in my area? I hope so.

 

Another question:- When I said I had sent a CCA letter, which they received on 14th Feb, I thought that as well as an original agreement, I should also get a statement of the of the account claimed ie. payments charges etc. Certainly the template letter I sent asks for this 'Your obligation also extends to providing a fully itemised statement of account'.

Is this correct? I certainly need this to be able to argue my case. Should I send an SAR letter?

 

Having read many threads on this forum now, it seems I am having the opposite experience to many posters i.e a lot of people seem to be harrassed by phone and letter constantly whereas I have received one phone call (25th Jan.) to ask if I had received the claim form, which I had'nt, but did receive it on the 26th Jan. Then nothing until the judgement letter against my wife which was dated 5th Mar. As I said before Irwin Mitchell are the DCA, is this how they operate?

 

What I have'nt made clear in my previous posts is that I am not trying to avoid paying this debt, I just want to find out how the figure is arrived at, and argue about it being loaded with charges etc. I assumed that getting a proper reply to the CCA letter would tell me where it all came from and if they were unable to provide an original agreement then I would be in the driving seat for negotiating payments etc. I am also very annoyed about the way this happened - no contact whatsoever until the phone call and claim within a day of each other - no default notice, no previous contact, no opportunity to resolve the matter.

 

I'm rambling on.....I'll stop now.

 

Any thoughts or information appreciated.

 

Regards

[car2403]

Hello again, just an update.

 

Yesterday I sent the form and £75 for set aside of judgement. I'll wait and see what happens there. If the judgement is set aside, doe's that mean the case will be moved to a court in my area? I hope so.

 

The application will need to be heard at your local court - Judgment won't be set aside automatically, as I've mentioned above, unless certain criteria apply - which don't in your case. Northampton should transfer the claim to your local court automatically, who will then list the hearing to look at the application.

Did you just send the application, or have you submitted a defence as well? If no defence, you'll have to submit one at least 14 days before the hearing date to give them time to respond - and, perhaps, for you to respond to their response! Don't worry, we'll guide you as you go.

 

Another question:- When I said I had sent a CCA letter, which they received on 14th Feb, I thought that as well as an original agreement, I should also get a statement of the of the account claimed ie. payments charges etc. Certainly the template letter I sent asks for this 'Your obligation also extends to providing a fully itemised statement of account'.

Is this correct? I certainly need this to be able to argue my case. Should I send an S.A.R - (Subject Access Request) letter?

 

Correct - they should have provided everything mentioned under s.77/s.78 CCA. If they haven't, they are in default of your request, which also means they can't enforce the agreement - this will form part of your defence. The problem being is that they will usually supply this information once you've entered your defence, rendering it useless, but again you'll get guidance along the way as to how to deal with it.

 

Having read many threads on this forum now, it seems I am having the opposite experience to many posters i.e a lot of people seem to be harrassed by phone and letter constantly whereas I have received one phone call (25th Jan.) to ask if I had received the claim form, which I had'nt, but did receive it on the 26th Jan. Then nothing until the judgement letter against my wife which was dated 5th Mar. As I said before Irwin Mitchell are the DCA, is this how they operate?

 

That is the usual experience, but once they've issued against you, most find that all collection activity stops. In fact, the OFT says no collection activity should occur while the account is in dispute - it just looks like it's worked in your case!

 

What I have'nt made clear in my previous posts is that I am not trying to avoid paying this debt, I just want to find out how the figure is arrived at, and argue about it being loaded with charges etc. I assumed that getting a proper reply to the CCA letter would tell me where it all came from and if they were unable to provide an original agreement then I would be in the driving seat for negotiating payments etc. I am also very annoyed about the way this happened - no contact whatsoever until the phone call and claim within a day of each other - no default notice, no previous contact, no opportunity to resolve the matter.

 

You can't avoid the debt unless there was some sort of fraud happening for them to claim you are in debt. (Unlikey!) What you can avoid, however, is an "enforceable debt". The difference between a "debt" and an "enforceable debt" really depends on them - most companies with an unenforceable debt will write the debt off! Some won't and will continue to allow Debt Collection Agencies (DCA's) to chase you until you break. There's some tricks up our sleeves to deal with this, however, so I won't cover that here just now.

 

I'm rambling on.....I'll stop now.

 

Not at all - ramble away! If you don't understand your own defence, the Judge and the other side will rip you apart, IMHO. If you don't ask questions, you can't get answers...

 

Any thoughts or information appreciated.

 

Regards

 

Responses above...

[Mariner]

Once again thank you - more food for thought.

 

I still don't understand why they have gone after my wife rather than both of us. I can think of three possible reasons

 

It gives them a second shot (at me.)

 

They think the ladies are more susceptible to demands (If so I can see from reading on here that they are sadly mistaken.)

 

Simply that her acknowledgement of service was a day late.

 

Incidentally I would think that RSI is very inconvenient (and painful) considering what you do on here.

 

I'm very grateful to you.

 

Regards

[Mariner]

Hello again - another thought occurred to me. Although I have not had a judgement against myself AND I missed the the deadline for sending a defence.If I sent a defence now including the fact that I have'nt had a reply to the CCA letter would that preclude them getting a judgement against me and then having to go through the set aside procedure again.

 

I would feel much better about all this if I was actually dealing with it in my name instead of in my wifes name.

 

Regards

[Mariner]

Hello again to all,

 

I would like to say this is an update - but absolutely nothing to report!. I have done as advised above. Have had no responses from anybody at all - court/DCA/RBS.

 

Any way my question is that because I have had no response to the CCA request (received Feb 14th.) Should I now be taking further action myself or is it a case of letting sleeping dogs lie?

 

Why am I hearing absolutely nothing - no phone calls or threatening letters? I feel like 'Billy - no mates' . Eek! - rambling again - must lay off the cider.

 

Thanks for listening and regards.

[maroondevo52]

Sorry, wrong thread.

[car2403]

Hello again to all,

 

I would like to say this is an update - but absolutely nothing to report!. I have done as advised above. Have had no responses from anybody at all - court/DCA/RBS.

 

Any way my question is that because I have had no response to the CCA request (received Feb 14th.) Should I now be taking further action myself or is it a case of letting sleeping dogs lie?

 

Why am I hearing absolutely nothing - no phone calls or threatening letters? I feel like 'Billy - no mates' . Eek! - rambling again - must lay off the cider.

 

Thanks for listening and regards.

 

It really depends how far you want to go.

 

You can complain to the ICO/FOS, or you can take Court action to enforce your rights.

 

Usually, no reply means they have nothing to rely on, so they don't bother.

[stevieb52]

Hi Mariner,

Hope you don't mind but I need to reference this thread as I have close family members who have virtually the exact same scenario as yourslef with Irwin Mitchell/RBS.

I hope all is well with your situation and that no news is good news!

Cheers

StevieB52

[Mariner]

Hello again,

 

A quick update on this:-

 

First of all I,ve been working away more or less since my last post so I,m catching up myself.

 

We received a letter from Irwin Mitchell. I,ll type it out, I,m still waiting for MY scanner to be returned!

 

 

************

 

15th April 2008

 

Dear Mrs Mariner

 

Claimant: RBS Plc.

Defendant: Mrs Mariner

Claim No: XXXXXXXX

 

We refer to the above matter and your Part 18 Request for Further Information.

 

Given the various information and documentation you have requested, you have not given our client a reasonable time to respond as required under the Practice Direction to CPR 18 at paragraph 1.1. We estimate it will take at least a further 28 days for our client to provide the information and documentation requested if available.

 

As Judgement has been entered, you will not be required to file a defence unless your application to set aside Judgement is successful. Your application to set aside Judgement has not yet been listed for a hearing therefore we do not feel that you will be predjudiced by the unavoidable delay.

 

Please contact xxxxxxx if you wish to discuss this matter.

 

Yours faithfully etc.

 

**********

 

That was received on the 16th Apr.

 

 

We then received the date of the set aside hearing on the 17th Apr. It is set for the 28th Apr. - tomorrow.

 

My wife spoke to the County Court re:- the letter above pointing out that they required 28 days more to supply CPR 18 documents and asked if we should apply for the hearing to be put back. She was told that it was £75 and anyway 'they' would apply if 'they' wanted more time. The clerk also told my wife to make sure and be there because the majority of these applications that fail is simply because the applicant does'nt show up.

 

Does this work in our favour ie. Irwin Mitchell/RBS have now failed to supply any documents requested. My original CCA 74 requests were signed for on the 14th Feb so the 12+2+30 days would finish at the end of March. So to sum up:-

 

No default notice.

No details of what the claimed amount is made up of and no indication of account Nos.No details about anything at all.

No contact whatsoever except what I've detailed in this thread.

No response to CCA request.

No response to CPR 18 request (so far).

Judgement awarded on 5th March after CCA default date.

 

Have I missed anything out?

 

Do you think we have a realistic chance of a set aside?

 

Will my wife be able to ask the court if I can speak on her behalf because although I don't have a judgement against me, there is the same claim against me?

 

Any thoughts or advice appreciated.

 

Regards