RBS... Irwin Mitchell... Help!

[stevieb52]

Hi folks

 

I have been made aware of a situation involving close family members who have been dealing with a situation virtually identical to Mariner's, involving the RBS and Irwin Mitchell:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135159-royal-bank-scotland-claim-2.html

 

I had planned to follow the same advice given to Mariner but there are a couple of differences in this case, firstly I think that a default notice may have been served and also things have moved on a stage...

 

The family member has been served a "Notice of Allocation to the Fast Track". With a Judge assigned to the case along with a timeframe for a trial, it talks about Pre Trial Checklists, although it does also state that "Any party affected by the terms of this order may apply to have it set aside or varied."

 

So am I correct in presuming that we can still apply to have it set aside on the grounds that they have not/cannot supply the signed original agreement? A CCA request was sent towards the end of last year.

 

I am looking for any advice that will confirm if this is the right approach, obviously I need to get this spot on so any advice would be greatly appreciated by all of us!

 

Thanks

StevieB52

Edited May 19, 2008 by stevieb52
Edited to replace incorrect link

[vselym]

Hi StevieB52

 

Although im no expert, as far as im aware, providing they are in default of the cca request, it provides a complete defence against enforcement.

 

To apply for a set aside you need form N244 from your local court, and i think id be right in saying you also would want to challenge the fast track element of the claim

 

Im sure if im wrong someone else will redirect you

 

regards

 

vselym

[Mariner]

Hello Stevie,

 

Just seen your posts, I will make a point of posting tomorrow after the hearing - hopefully mid afternoon. Obviously I would like it to go our way but if not it won't be a disaster. I'll just have to come up with Plan B. If I learn anything that may be useful to you I will post it.

 

By the way, within a few hours of coming on this site I started to feel positive about the issue - the (excellent) advice on here can be a bit overwhelming at first, you've got to re-read some posts several times to make sure it sinks in and you understand. I found it quite helpful to have a notepad to hand and make notes about what things meant (eg. SAR, CPR 18 etc.) so that I would'nt have to keep looking things up. Although that could be my age.

 

Rambling on again - they say everybody has a novel in them - I think mine is coming out on here.

 

Regards

 

Mariner

[elizabeth1]

Lots of these companies (Banks, CC Companies, Loan Companies, DCA's) are so eager to get people through court etc.. they "forget" to follow the correct procedures with their claims - there is a tendancy to hop, skip and jump over certain elements - this will be their downfall cause it's where you'l have strengths in your defence

 

Maybe this will help - were the correct procedures taken by the company involved prior to taking court actions ??

 

Regulations and rules are there for these companies to follow too - seems many of these companies think they don't have to adhere to such rules and regulations doesn't it?

 

 

 

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.

[TideTurner]

Are these part of the Civil Procedure Rules? Sorry for being lazy

[elizabeth1]

Tide YES they are from here

 

PRACTICE DIRECTION – PROTOCOLS -

[TideTurner]

Cheers Lizzy!!

[elizabeth1]

It's amazing how much these companies mess up isn't it?

 

Seems they forget there are procedures to follow ?

[TideTurner]

I believe they tend to train up people to understand procedure, and then lay them off when they have a problem, therefore leaving kids with no knowledge to deal with the day to day issues. When a case becomes a problem, it is escalated to an old hat. They do their best, but until they master the art of shafting the general consumer, they only add confusion to the whole matter.

[elizabeth1]

What surprises me more is these companies of solicitors who actually file these claims within courts etc.. against consumers.

These solicitors are fully aware that these cases/claims won't stick once the defendant defends and counterclaims etc.. - the solicitors are aware the protocols haven't been followed prior to filing the claims and they've either not seen the correct paperwork (CCA, default notices etc..) yet they still go ahead and waste court time.

 

It seems that the DCA's and solicitors are relying on the consumers never to question these claims and defend such claims? These companies really do push their luck.

[TideTurner]

That situation is about to change.

 

Since the judgement with the OFT, the banks are scrutinising the costs involved with legal action. If they continue to fight a lost battle, they will simply be throwing good money after bad.

 

Time to give up and face the consequences, anything else would not be in the best interests of their shareholders, and is therefore illegal.

 

The Board and Executive have a duty to ensure that the interests of their shareholders are maintained, and any money spent (albeit on legal costs) is done so with shareholders interests at heart.

 

Time to throw in the towel.

 

Tide

[Iceman54]

A lot of solicitors set up "paper firms" which they then rent out to DCA's ( a practice frowned upon , and being investigated by the law society)

 

Most Solicitor's letters sent by DCA's have never been viewed by a real solicitor, they are merely a bullyng tool sent out by a higher echelon of bottom feeders within the DCA

 

Because of sites like this I think a lot of DCA's will have ceased trading within 12 months or so

 

Wouldnt it be great if the directors of these companies started getting phone calls and threats through the post................from the people they owe money too

 

[TideTurner]

Spot on Iceman.

 

Unfortunately, these people do not go away, because they have no other form of income, and have the advantage of their upbringing providing them with the ability to shaft their fellow man.

 

On the upside, sites like this are exposing them, maybe it would be an idea to expose the names of these people? No doubt they would get the sites shut down, but it could become a full time job for them.

 

Anything that is publicly available, including directorships, the addresses of same and accounts, could be published to expose these bullies.

 

Tide

[stevieb52]

Phewee! Cheers folks, and good luck Mariner I really hope all goes well.

 

I'll have a thorough read of all points made here and take it from there, in my mind I was thinking of going down the following route:

 

Send n244 to have judgement set aside

Send CPR Part 18 Request and also

Send SAR

 

Does that sound reasonable? Obviously I'll have a thorough read and see if that changes anything.

 

Thanks for all your support and advice.

[stevieb52]

Hi vselym, have you any idea how I can "challenge the fast track element of the claim"?

 

I have searched on the forum and Google and nothing is coming to me (it has been a long day so if I'm being thick then apologies!) any help would be appreciated!

 

Thanks

Steve

[stevieb52]

Hi elizabeth1, I'm certain that they haven't followed procedure I've learnt recently that very few of them do!

 

I'll have a proper read of the link to check the procedures they should have followed.

 

Thanks

Steve

[vselym]

Stevieb52

 

i found this

Quote:

Do any of the legal experts on here know if there's any way at all of challenging a Judge's decision to Fast Track, if all your common sense tells you it was the wrong decision?

When you get an order notifying you of the track you can apply to vary the order and have the track shifted. You'd then have to go to an application hearing and explain your reasons. If that was unsuccessful you could appeal, although that in itself carries a costs risk and appealling any decision is not something which should be recommended for a litigant in person in any event.

 

from this thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/126487-ccj-question-re-fast.html#post1355688

 

hope that helps

[elizabeth1]

A lot of solicitors set up "paper firms" which they then rent out to DCA's ( a practice frowned upon , and being investigated by the law society)

 

Most Solicitor's letters sent by DCA's have never been viewed by a real solicitor, they are merely a bullyng tool sent out by a higher echelon of bottom feeders within the DCA

 

Because of sites like this I think a lot of DCA's will have ceased trading within 12 months or so

 

Wouldnt it be great if the directors of these companies started getting phone calls and threats through the post................from the people they owe money too

 

Iceman Yes this is what many of us have found = the DCA's like Cabots are actually sending out template letters on behalf of their solicitors Hodsons who are based in Rugby with a messaging service where they electronically phone people harrassing for money etc..

 

The templates show up in the SAR's showing dates issued etc.. as the Pre Lim and Letter Before Acton - then they'll tell solicitor to issue cour claim after they've checked the Land Registry to check the person has enough equity in their home to do a !quicky" loan to pay debt off. Cabots did have on their website (likenumerous other DCA's) a loan company ready to refinance people.

 

All the solicitors will issue the cour claims regardless of never having seen proof that such a debt exists and is enforceable through courts etc.. - seems solicitors just "act on their clients instructions" as Hodsons so readily say in their replies. But once the defendant questions claims and CCA/SAR etc.. they'll back off and let cases be struck out of court. Hodsons have begun filing claim online more recently as it stops people like us challenging the solicitor who signs the court claim.

 

My own thoughts are that the solicitors involved should be more diligent and question the validity of claims they are filing in courts to ensure that cases are correct and will stand as enforceable in courts etc.. that their clients have followed procedures leading up to court claim etc..

 

However it seems that these solicitors don't check the validity of claims and file claims on behalf of the DCA's hoping that the consumer doesn't challenge the claim and will just pay up to avoid a CCJ etc.. As we all know many people will just pay up as court scares us all - so they win on the basis that the consumer doesn't know how to challenge the validity of claims - which is a shame as the DCA wins despite being wrong in many cases/claims.

 

It will be interesting to see whether the recent OFT findings will change the way some of these companies operate with their collection activities - it will be nice to see that things are changing within the debt collection industry. Thankfully this forum and many others like it are allowing the consumer to learn their rights to challenge the shoddy behaviour from these companies.

[stevieb52]

Thanks vselym, it seems fairly involved and my relatives are frankly petrified of court so going to a hearing to justify having the fast track status shifted or reallocated is a bit of a long shot.

 

Am I correct in saying that my relatives may now be liable for all the court costs now that it has been allocated to the fast track?

[stevieb52]

Also can anyone help in terms of a defence, I have seen the one posted in Mariners thread here which looks good although in fairness this point isnt relevant as I'm certain a default notice was sent:

 

"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."

 

And does it matter that I havent yet sent in a CPR Part 18 Request?

 

Thanks again

Steve

[vselym]

stevieb52

 

ill read up on court procedures, but a call to the court where the papers were served from, explaining that your relatives would be litigants in person, and asking what forms you would need, may help

 

what time scales are you constrained by ?

 

you also mention in your first post that a CCA request remains unfulfilled, was that letter sent by recorded/registered/special delivery, and do you have, can you get proof of receipt

 

an outstanding CCA request does provide a complete defence against enforcement

[stevieb52]

Thats great advice thanks vselym, I will ring the court tomorrow to see what's involved. And thanks for looking into the court procedures for me, its a huge help.

 

In terms of timescales I'll outline the wording from the Notice of Allocation to Fast Track below:

 

"2. a) Standard disclosure by list between the parties by 4.00 during the first week of June" (I didn't want to put the exact date in, am I being paranoid!)

 

"2. b) Inspection of documents one week later"

 

"3. a) Statements of witnesses as to fact from all persons giving evidence including the parties to be exchanged by 4.00pm mid July"

 

"4. The parties shall file pre trial checklists by 4.00 first week of August"

 

Finally...

 

"5. a) The trial of this claim will take place during the period commencing end of September and ending mid to late October at a venue to be notified. The estimated length of hearing is 2 hours"

 

Also you are correct that the CCA request remains unfulfilled, I'm certain I can get proof of delivery as it was sent via Special Delivery. They stated that they didn;t need to supply the info as they obtained a CCJ I quote...

 

"the sums due... are being recovered within the terms of the Judgement and not the CCA. Therefore, the Bank is not required to supply you with a copy of the credit agreement under the Consumer Credit Act 1974."

 

So do you happen to know that there is a CCJ is in place does a CCA request still provide a defence?

 

And thats the end of War and Peace chapter 1!

[vselym]

stevieb52

 

Chapter 2 !

 

was the ccj in place before the CCA request ?

 

if not then i think you could apply for a set aside of the ccj on the grounds of no cca

[stevieb52]

Hi vselym

 

Thanks for the swift reply, sadly the CCJ was in place before the CCA request

[vselym]

stevieb52

 

may have given you a bum steer on the fast track element, could be to do with the values involved, but ive had fun reading around the subject !