Royal bank of Scotland claim.

[citizenB]

bump x

[elsinore]

Hi Mariner, I hope this is not too late to be useful.

 

It seems to me that the sole reason for your wife’s default judgment was because she was unable to file her acknowledgement of claim in time. Sending the acknowledgement by registered post was a brave effort, but just too late.

 

Most (but not all) judges will make allowances for litigants in person so, if you ask politely, the judge might well allow you to speak for your wife. I would not be afraid of telling the judge that you are defending a similar claim. After all, if you are successful with your set-aside application, the judge might well decide to hear both claims together. I would not assume that, just because you have heard nothing in respect of your claim, they won’t follow through with it eventually. Treat it very much as an ongoing claim.

 

As to the reasons why a judge might allow your set-aside application, Car2403 has stated the technical points which bring RBS’s claim into question and you yourself have summarised the mechanical reasons regarding dates, timings, etc, in tonight’s post. So, I would set out your arguments as follows:

 

• the reason why the default judgment came about
  
• the technical weaknesses in the RBS claim
  
• the unfairness of the timing of the hearing against RBSs’ failure to respond
  
• your confidence that there is a case to defend based on the above.

Good luck tomorrow.

 

Els.

[elizabeth1]

Mariner - good luck tomorrow I hope things go your way etc.. - I am not sure if the following helps you out regarding pre court protocols etc.. - all the stuff these companies should do before taking court action as if they ever do

 

 

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-181.html#post610967

 

 

 

PRE-ACTION BEHAVIOUR IN OTHER CASES

 

4.1 In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and ©, to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings.

 

4.2 Parties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation. The procedure should not be regarded as a prelude to inevitable litigation. It should normally include –

(a)the claimant writing to give details of the claim;

(b)the defendant acknowledging the claim letter promptly;

©the defendant giving within a reasonable time a detailed written response; and

(d)the parties conducting genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.

 

4.3 The claimant's letter should –

(a)give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b)enclose copies of the essential documents which the claimant relies on;

©ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

(d)state whether court proceedings will be issued if the full response is not received within the stated period;

(e)identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f)state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g)draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

 

4.4 The defendant should acknowledge the claimant's letter in writing within 21 days of receiving it. The acknowledgement should state when the defendant will give a full written response. If the time for this is longer than the period stated by the claimant, the defendant should give reasons why a longer period is needed.

 

4.5 The defendant's full written response should as appropriate –

(a)accept the claim in whole or in part and make proposals for settlement; or

(b)state that the claim is not accepted.

 

If the claim is accepted in part only, the response should make clear which part is accepted and which part is not accepted.

 

4.6 If the defendant does not accept the claim or part of it, the response should –

(a)give detailed reasons why the claim is not accepted, identifying which of the claimant's contentions are accepted and which are in dispute;

(b)enclose copies of the essential documents which the defendant relies on;

©enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

(d)identify and ask for copies of any further essential documents, not in his possession, which the defendant wishes to see; and

 

(The claimant should provide these within a reasonably short time or explain in writing why he is not doing so.)

(e)state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution.

 

4.7 The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if this paragraph is not followed then the court must have regard to such conduct when determining costs;

 

It is not practicable in this Practice Direction to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:

 

Discussion and negotiation.

Early neutral evaluation by an independent third party (for example, a lawyer experienced in that field or an individual experienced in the subject matter of the claim).

Mediation – a form of facilitated negotiation assisted by an independent neutral party.

 

The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services.

 

It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.

 

4.8 Documents disclosed by either party in accordance with this practice direction may not be used for any purpose other than resolving the dispute, unless the other party agrees.

4.9 The resolution of some claims, but by no means all, may need help from an expert. If an expert is needed, the parties should wherever possible and to save expense engage an agreed expert.

 

4.10 Parties should be aware that, if the matter proceeds to litigation, the court may not allow the use of an expert's report, and that the cost of it is not always recoverable.

 

These are taken from here Civil Procedure Rules

 

PRACTICE DIRECTION – PROTOCOLS -

[Mariner]

Many thanks Elsinore,

 

Our plan is to wait until my wife is asked to comment on the matter and at that point she will ask if I could speak on her behalf. Before we enter the court I was planning to ask the court staff if there was a procedure for this.

My wife is imagining a court full of jurors and wigs. I have told her it's more a formal office setting. I hope I'm right!!! (For my sake.)

 

On a lighter note: A court setting does not intimidate me, however. I once many years ago (1993 I think) defended myself on a minor motoring charge which at the time would have carried 2 penalty points and a £50 fine. I talked myself into 4 points and a £270 fine.

 

Oh no! rambling again!

 

I should have called myself 'Rambler' not 'Mariner'. I was only posting to thank you.

 

Regards

 

Mariner

[elsinore]

Our plan is to wait until my wife is asked to comment on the matter and at that point she will ask if I could speak on her behalf. Before we entered the court I was planning to ask the court staff if there was a procedure for this.

 

Good idea. The court staff are usually very helpul and will know the foibles of the particular judge who is hearing your case.

 

My wife is imagining a court full of jurors and wigs. I have told her it's more a formal office setting. I hope I'm right!!! (For my sake.)

 

It depends on the size of your County Court. Very often it's just a room with a couple of large desks. Even if it is a real court room with a raised bench, it'll still only be the three of you (I'm presuming RBS won't show!).

 

On a lighter note: A court setting does not intimidate me, however. I once many years ago (1993 I think) defended myself on a minor motoring charge which at the time would have carried 2 penalty points and a £50 fine. I talked myself into 4 points and a £270 fine.

 

Try not to have the same effect tomorrow.

 

Els

[citizenB]

Wishing you all the best for today x

[Mariner]

Quick question - anybody.

 

Should a default notice be sent to me by recorded post.

 

Regards

[car2403]

Quick question - anybody.

 

Should a default notice be sent to me by recorded post.

 

Regards

 

There's no requirement for it to be recorded, but you might find it was.

 

The only requirement is that it is sent to the last known address. (s.87/s.88 CCA 1974)

[Mariner]

Thanks for that Car.

 

However we have just got back from the court. No real result - the judge seemed to be very clued up and gave the RBS solicitor a hard time and told them to get their act together re: CCA, SAR and CPR requests. Now it's adjourned till mid June.

 

At one point the solicitor said we had been contacted prior to all this by Green and Co. - never heard of them!

 

Will post again later.

 

Regards and thanks to all.

[nicklea]

Mariner,

 

When you say no real result - do you mean that the summary judgement wasn't set aside? A summary judgement means you've lost.

 

From what you said it was set aside and there is going to be a hearing. That is a real result. If you hadn't got it set aside then the judge would have been asking you how you were going to pay

[Mariner]

Hello all,

 

I'm posting to keep this thread live, once again I have been away working and the opportunity to use the the internet for any length of time with any privacy is virtually nil. I have had a letter from the court with the date of the next hearing. I will post details later (this coming weekend.)

 

Regards

[Mariner]

Hello,

 

An update.

 

First of all - we received this from the county court dated 6th May.

 

 

 

General form of judgement or order.

 

Claim no./names and addresses etc.

 

Before district judge --- sitting at ---- county court etc.

 

 

Upon hearing the solicitor for the claimant and the defendant in person.

 

IT IS ORDERED THAT

 

1. The application be adjourned until the 23rd June at county court etc.

time estimate 20 mins.

 

2. There is permission to claimant to file and serve amended particulars of claim to comply with the CPR (if so advised) by 4pm on the 30th May.

 

3. The proposed defence shall be filed and served by 4pm on the 13th June.

 

 

 

 

At this point I was wondering if the application to set aside the CCJ was going to be successful because reading the above it does'nt seem to address the fact that this was an application to set aside instigated by ourselves.

 

 

However we received this today from Irwin Mitchells

 

Names,addresses, claim Nos. etc.

 

WITHOUT PREDJUDICE

 

Dear Mr and Mrs Mariner

 

We refer to the above matters.

 

Our client has confirmed that they are unable to supply a true copy of the loan agreement pursuant to section 77 of the consumer credit act 1974. We are therefore instructed to cease the proceedings in respect of the balance outstanding on the loan account.

 

The balance outstanding on the current account is£69.00 therfore please contact xxxxxx of this office on 0161 838 3099 within the next 7 days to arrange payment of this sum or to discuss a payment arrangement. On receipt of payment in the sum of £69.00 we will file a notice of discontinuance in respect of both claims.

 

yours faithfully.

 

 

My first instinct was to send the £69.00 immediately - but I had second thoughts.

 

Doe's this make the CCJ set aside any more likely?

 

Will post again shortly with a couple of questions.

 

Many thanks and regards

[paulwlton]

Hello,

 

An update.

 

First of all - we received this from the county court dated 6th May.

 

 

 

General form of judgement or order.

 

Claim no./names and addresses etc.

 

Before district judge --- sitting at ---- county court etc.

 

 

Upon hearing the solicitor for the claimant and the defendant in person.

 

IT IS ORDERED THAT

 

1. The application be adjourned until the 23rd June at county court etc.

time estimate 20 mins.

 

2. There is permission to claimant to file and serve amended particulars of claim to comply with the CPR (if so advised) by 4pm on the 30th May.

 

3. The proposed defence shall be filed and served by 4pm on the 13th June.

 

 

 

 

At this point I was wondering if the application to set aside the CCJ was going to be successful because reading the above it does'nt seem to address the fact that this was an application to set aside instigated by ourselves.

 

 

However we received this today from Irwin Mitchells

 

Names,addresses, claim Nos. etc.

 

WITHOUT PREDJUDICE

 

Dear Mr and Mrs Mariner

 

We refer to the above matters.

 

Our client has confirmed that they are unable to supply a true copy of the loan agreement pursuant to section 77 of the consumer credit act 1974. We are therefore instructed to cease the proceedings in respect of the balance outstanding on the loan account.

 

The balance outstanding on the current account is£69.00 therfore please contact xxxxxx of this office on 0161 838 3099 within the next 7 days to arrange payment of this sum or to discuss a payment arrangement. On receipt of payment in the sum of £69.00 we will file a notice of discontinuance in respect of both claims.

 

yours faithfully.

 

 

My first instinct was to send the £69.00 immediately - but I had second thoughts.

 

Doe's this make the CCJ set aside any more likely?

 

Will post again shortly with a couple of questions.

 

Many thanks and regards

 

Result! nice one, pay the £69.00 then go get p*****

 

Paul

[Mariner]

Thanks for that Paul and of course thanks to everybody else who has helped us with this. If I had'nt come onto this forum, I'm sure I would be now trying to budget for a large monthly payment to them.

 

I am convinced that the reason we have reached this point fairly painlessly is the high public profile given to some of the banks/CCCs questionable practices by people like Paul (your RBS thread is like reading War and peace.)

 

I said quite early on in this thread that I had no intention of avoiding any debt we had with the RBS and still intend (foolishly some might think) to deal with this.

 

I thought that I should try to contact RBS collections directly to avoid them passing this on to another DCA. Any thoughts - comments?

 

If they have no true copy of the loan agreement will this add further weight to our CCJ set aside application?

 

Once again thanks to all of you.

 

Regards

[heartopp]

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

 

Hi sorry to butt in... But on that link it says that:

 

9- Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?

 

Is this right??

 

Also, well done... just read all the thread!

Edited May 31, 2008 by heartopp
well done

[Mariner]

Good morning Heartopp,

 

In answer to your questions.

 

1. We disagreed with the whole amount both in the acknowledgement of service and at the hearing, although at the hearing it was a not an issue because of the judges view of of the very poor particulars of claim and no response to the CCA request etc.

 

2. The absence of a default notice was also a non-issue for the same reasons.

 

I am still wondering whether we should get in touch with the RBS and try to preclude any further action on their part, whilst they can't find a true copy of the agreement - they might try harder!

 

Regards

[Docman]

If they have no true copy of the loan agreement will this add further weight to our CCJ set aside application?

 

I would say so!

 

I also think its a bit cheeky of the solicitors to ask you to pay £69 when you have caught them out. I suggest you write back and say that you want the Discontinuance for all the claim AND removal of any adverse comment on you credit file.

[heartopp]

No No - I understand what you are going through. My qustion was with regards to the link that was provided.

 

I will start a new thread on my situation to see if anyone can help.

 

http://www.consumeractiongroup.co.uk/forum/natwest-bank/146583-got-ccj-fron-natwest.html#post1546447

 

Thanks

Edited May 31, 2008 by heartopp

[Mariner]

Heartopp,

 

Sorry about the misunderstanding - basically I was only only thinking about me - selfish - I'll try to improve!

 

I made a list of possibly relevant points whilst trying to find reasons for a CCJ set aside and then tried to put them in order of relevance. I'll look it up tomorrow and post it - it is all taken from the advice given on here, I tried to simplify it for myself and turn it into a simple 'aide memoire' for the hearing. I still did'nt get it right, there are points that were made apparent to me by the people who responded to this thread that I totally missed until after the event.

 

If I had defended O.J.Simpson he would still be breaking rocks!

 

Will continue tomorrow

 

Regards

[heartopp]

Heartopp,

 

Sorry about the misunderstanding - basically I was only only thinking about me - selfish - I'll try to improve!

 

 

How rude

 

Keep us updated

[Mariner]

Hello all,

 

Update:

 

First of all - a big THANK YOU to all who have advised me on this issue. My wife's CCJ was set aside about two weeks ago due to following the advice given on this thread.

 

Secondly: - apologies for my lack of communications since my last post, this is due to the way I work and I have been away for a few weeks, having said that, my employers (a very large multi-national) who were aware of our problem, said they would fly me home for the hearing if necessary. As it turned out my wife handled it by herself - the set aside was not contested and no surprises occurred. My concern was that - my wife was not concerned at all! Did she know something that I didn't?

 

When the hearing finished my wife said to the judge, that she would now try to find out what it was all about and sort it all out. The judge said "don't bother Mrs Mariner, they just want this buried, don't contact them"

 

One last comment:- the original solicitors that contacted us - Irwin Mitchell of Manchester - have dealt with this matter in a very professional manner and we certainly do not have any complaints about them (credit where credit's due!)

 

Many thanks and regards

[paulwlton]

Hello all,

 

Update:

 

First of all - a big THANK YOU to all who have advised me on this issue. My wife's CCJ was set aside about two weeks ago due to following the advice given on this thread.

 

Secondly: - apologies for my lack of communications since my last post, this is due to the way I work and I have been away for a few weeks, having said that, my employers (a very large multi-national) who were aware of our problem, said they would fly me home for the hearing if necessary. As it turned out my wife handled it by herself - the set aside was not contested and no surprises occurred. My concern was that - my wife was not concerned at all! Did she know something that I didn't?

 

When the hearing finished my wife said to the judge, that she would now try to find out what it was all about and sort it all out. The judge said "don't bother Mrs Mariner, they just want this buried, don't contact them"

 

One last comment:- the original solicitors that contacted us - Irwin Mitchell of Manchester - have dealt with this matter in a very professional manner and we certainly do not have any complaints about them (credit where credit's due!)

 

Many thanks and regards

 

I take it RBS have never produced statements showing how the figure was reached?

 

Were your accounts held at CMS Telford?

 

Regards Paul

Edited July 4, 2008 by paulwlton

[Mariner]

Hello Paul,

 

In answer to your question - RBS have not provided anything whatsoever in response to our requests for CCA/SAR etc. So apart from the £69 which we were told was for a current account, we know no more than the figure (£23,000+) on the original court claim form.

 

Good luck with your ongoing fight with the RBS.

 

Regards

[citizenB]

Congratulations to you both and well done Mrs Mariner:)

[Docman]

Mariner,

 

Glad to hear your good news and well done.

 

Doc