RBS CCA request refused due to CCJ

[surfaceagentx20]

Thanks Paul, I wondered if that decision was behind your concerns ie: subject to the existence of a relevant provision in D&D's contract, the post judgment interest is not merged with the judgment but, by reason of that contractual provision, a liability for it endures and, since any action for its recovery will necessarily require reliance on the contractual provision. Where better to find that provision than in the contract? [QED].

 

OK and that's good. The thing is and where I was coming from, was that according to D&D, it is the bank's case that (and I quote D&D) 'our Contract/Agreement with them is our CCJ, NOT our original agreements', which suggests to me at least, that the bank is treating the contract as having merged with the judgment so that nothing endures which is actionable independent of the judgment. The adoption of such a position would be consistent with their having destroyed the original agreement. The court would be slow to allow the bank to resile from the position it represented in its statement to D&D and even more slow to allow such a claim in the absence of production of the agreement. This would be so without prejudice to any limitation defences which might be avalable to D&D.

 

DG of Fair Trading v First National Bank [2001] makes it a sure fire given by reason of article 2 that the bank's CCJ does not entitled them to post judgment statutory interest. First National accepted this was so in their situation. Any payments made by D&D will therefore be payments in reduction of the judgment debt and there will be no deduction or off set towards interest or accumulation of interest. If the judgment debt was £1000.00 and was repaid at £100.00 pcm, in ten months, D&D wold be entitled to a certificate of satisfaction of the judgment for it would have been discharged in full.

 

I think Paul, that where you were coming from was affording protection against the risk that a second action for post-judgment interest might be brought. At present, I think there's little risk of that.

 

Interesting though.

 

I'll look at D&D's question shortly. I notice it's gone ten to eleven so I'd best get myself off to the pub!

 

x20

[paulwlton]

Hi S - unfortunatley for D&D there's already been a second action on this judgment debt by way of a legal charge gained on their property. The charging order was granted on the basis that all interest post judgment is rightly due. (the judge was obviously ignorant of the law even after this was contested)

 

There are now major concerns regarding RBSs internal accounting behaviour that what seems to be going on with their so called "router accounts" maybe contrary to law. I think you'll find out by viewing threads that involve RBS customers that they are witholding documents. Several MPs are now on their case and i believe some form of political action will be forthcoming.

 

I quote from a recent letter to my MP from RBS.

 

"However, as i have explained above, there would NEVER be any intention to charge or to collect this interest from a customer after a judgment is obtained, unless of course the original terms and conditions and, indeed, the judgment itself permits."

 

PW

[surfaceagentx20]

There's been a second action and a charging order!? How old are this pair? And how come you're a step ahead with the information PW:)

[paulwlton]

There's been a second action and a charging order!? How old are this pair? And how come you're a step ahead with the information PW:)

 

Check out the links - i know all about D&Ds case. (and others). Their thread is worth subscribing to.

 

PW

 

How trustworthy is your bank? | Money | The Guardian

 

MP fears bank's phantom paperwork may be just the tip of an iceberg | Money | The Guardian

[surfaceagentx20]

Thanks again Paul. I had no idea there was so much background to all of this.

 

x20

[DandD]

It would appear that the banks argument would be, that once they got judgement, then they destroyed the agreement which existed when the CCJ was gained. & therefore do not have to substantiate there claim against us.

We have retained all correspondence prior to the CCJ. & with the info from our SAR we can prove that the accounts had been altered without our knowledge or consent. We can provide letters which show the bank was withholding this from us, & we can provide proof that no agreements ever existed for these accounts.

In most cases nowadays, banks encourage people in debt to turn overdraft accounts into loans, & a new agreement is set up & signed. In our case, & others the RBS did this without consulting or informing the customer.

Paul's MP has already asked the bank to explain this action,& to question whether it is legal.

Only in court will we get an answer.

 

Debs

[paulwlton]

My personal opinion is that the banks behaviour is illegal, they're over cooking their book debt (not good for shareholders) and once the **** its the fan more will come forward.

 

I understand you've involved your MP - any news on that front?

[debbbbsy]

hi

 

has anyone looked at this www.fsa.gov.uk/pubs/final/rbs_12dec.02.pdf

 

It would appear that the banks failure to retain records & evidence of identity when new accounts are opened constitutes a breach of the Money Laundering Act ,section 7.3.2[1].

 

In 2002 the FSA fined the RBS £750,000 for failing to keep adequate records of accounts opened.

 

Does this mean if they fail to provide a Credit agreement with the correct address, name, & signature, aswell as not complying with a CA Request are they breaching the Money Laundering Act aswell.

 

I also now know who to contact about the audit carried out on our accounts in 1999, something that CMS Telford did not want us to Know.

Accounts are monitored by RBS Group Internal Audit["GIA"].

Anybody else had dealings with them ?

Debs

[btonbadger]

hi

 

has anyone looked at this www.fsa.gov.uk/pubs/final/rbs_12dec.02.pdf

 

URL not found? I'd be very interested in reading this.

 

 

Cheers

 

BB

[btonbadger]

FOund it...

 

http://www.fsa.gov.uk/pubs/final/rbs_12dec02.pdf

[DandD]

Hi All

 

A lot of you will be aware of our problem.

 

We had stopped writing to the Bank a few months ago as we had been recommended to contact a specialist Solicitor. we sent ALL of our documents to this solicitor and they came back to us saying that we had a very good case to have our Judgement 'Set Aside' and therefore our 'Charging Orders' dismissed.

 

They said that they understood the case.

 

They advised us to send them £1000, so that they could employ a Barrister to build the Case. This was done a few months ago. Over the last 3 weeks I have phoned the Solicitor on many occasions to get an update. I have been promised a call back many times, but as yet have had no phone reply.

 

Today we receive a letter from them........here's what it said...

 

Dear Mr D & Mrs D

 

ROYAL BANK OF SCOTLAND

 

I write further to recent correspondence by way of update. I can confirm that I have now heard back from the Barrister,xxxxxxxxxxxxxx, who has conducted an initial perusal of your case.

 

Following a discussion with your barrister, his initial view is that you do have very good prospects of setting aside judgments obtained against you as they were entered against you some 10 years ago based on an admission. (I think this is a typo, it maybe should read 'do NOT have very good prospect'). On this basis, the barrister's veiw is that this makes your case difficult.

 

He has however indicated that he is happy to provide a more detailed advice and has suggested the following:-

 

1. Mr xxxxx can provide a full advice in relation to your case. He has estimated that this will involve around 6 hours work at a cost of £150.00 per hour plus VAT. You are therefore looking at a cost of around £900.00 plus VAT. Please note that Mr xxxxxx is a senior barrister and this is reflected in his hourly rate.

 

2. The other option is to have a telephone conference without Mr xxxxx fully considering the papers (which you can appreciate, will take some time). This is likely to be less time consuming and therefore cheaper. It may also be cheaper if you used a junior barrister to advise in a telephone conference.

 

In light of the above, please advise me how you wish to proceed based on the above estimated fees and the barrister's initial perusal of your case.

 

I look forward to hearing from you. Should you have any queries or concerns in the meantime then please do not hesitate in contacting me.

 

Yours sincerley

 

Expensive Solicitor

[paulwlton]

Surely the barrister is not aware of the full facts.

[car2403]

Surely the barrister is not aware of the full facts.

 

Are they saying that your case is so open/closed that you don't need a Barrister involved? If so, then yes, and the advice is right, in that you don't need to pay all that out in this case. If not, then probably not...

[DandD]

Hi all,

 

It's been a while!!

 

Well if trying to resolve matters with the RBS is not enough, it looks as if we have been completely SCR**** by Stephensons.

 

Back in June, our case was passed to Stephensons by a CAG member, we had a whole evening with them at their home [not PW], the CAG member recommended this solicitor as being ideal to handle our case, he made the initial contact with Mark Bowden about our predicament with the RBS.

 

We initailly said to him "This might be difficult because the CCJ is 10 Years old"

 

We then spoke directly with Mark,he was made fully aware from the outset that this was not a straight forwared case,he accepted this, his words were..."I understand your case,you have a case to have this judgement set a side, we have similar cases which we are currently dealing with, we will piggyback your case so as not to duplicate work, I will not look at your case directly, I will pass your case straight over to a barrister. Send me £1000 to pay for the Barristers time."

 

This we did in June.

 

We then recieved confirmation in writing 1 month later ."We have recieved your payment"....we knew this!

 

A phone call form Mark Bowden middle of August, "we are instructing a Barrister to look at your case."

 

September, another letter confirming it had been passed to the barrister[but Mark had already told us this during the phone conversation] & we would be contacted within the next 2/3 weeks with his advice.

 

Then absolutely nothing until that confusing letter on the 17th Oct, which we have already posted.

 

Since then we have phoned repeatedly to find out what is going on. Not once have we been able to speak with Mr Bowden, all we get is his STAFF, who have no idea what is going on.

 

So, today.

 

We phone yet again, after being promised last thursday that Mr Bowden would call back that day. He didn't.

 

We were told that an interim bill had been sent yesterday. It wasn't recieved today, so we got them to send it by email........you won't believe this guys, but not only has Mr Bowden & his staff spent every single penny of our £1000 they want yet another £300.

 

So far the only advice that they have given us is......."This might be difficult because the CCJ is 10 years old"

 

WE TOLD HIM THIS ON DAY ONE!!!!

 

We'll post the breakdown of their bill later just for a laugh! £9.50 for every time that WE called them to ask what's going on.....Close to £200 worth!!!

 

Any comments would be appreciated.

 

D&D

[car2403]

Yes, stop using him...

[Josie8]

I don't understand why they gave you that advice as because judgment was given on admission by the defendant the court would be reluctant to look behind that judgment - especially after such a long time as 10 years.........are you sure you understood correctly?

 

Did they confirm in writing how fees were to be applied?

 

What terms of business did you sign?

[DandD]

Hi josie,

 

This is the problem, our case is not easy.

 

The bulk of our indebtedness to the RBS was for an overdraft on a business current account. In Nov 1997 the bank told us that our account numbers were changing because our accounts were being moved from our branch to Edinburgh.

 

It was these "NEW" accounts which were detailed in the CCJ.

 

When we did our SAR in April, it was to calculate exactly how much of our debt was interest & charges[we have not recieved any statements since 1993].Our debt on the CCJ was £58000, we have for the first time been able to calculated that £46000 of this is debt is charges & interest.

 

The bank refused to give us this information prior to the CCJ.

 

But we also discovered in April, the accounts were being referred to as Loan Capital & interest accounts. What they had done, without our knowledge or consent, was to close all our current accounts in June 1996. And open Loan accounts.

 

They also used a guarantee in 1997 from a business loan that had been discharged in 1996, to make it appear on their system & their solicitors that these loans were secured by my parents house.

 

What we want to establish is.

 

Can a bank alter a customers account without there knowldge or consent ?

In using the guarantee. Did they break the law?

 

By not disclosing to us & the courts the true identity of the "NEW" accounts when they applied the CCJ. If the information contained within the CCJ is innaccurate. How does this affect it's validity ?

 

These were the issues which we wanted to raise.

 

Debbie

[Josie8]

Hi josie,

 

This is the problem, our case is not easy.

 

The bulk of our indebtedness to the RBS was for an overdraft on a business current account. In Nov 1997 the bank told us that our account numbers were changing because our accounts were being moved from our branch to Edinburgh.

 

It was these "NEW" accounts which were detailed in the CCJ.

 

When we did our S.A.R - (Subject Access Request) in April, it was to calculate exactly how much of our debt was interest & charges[we have not recieved any statements since 1993].Our debt on the CCJ was £58000, we have for the first time been able to calculated that £46000 of this is debt is charges & interest.

 

The bank refused to give us this information prior to the CCJ.

 

But we also discovered in April, the accounts were being referred to as Loan Capital & interest accounts. What they had done, without our knowledge or consent, was to close all our current accounts in June 1996. And open Loan accounts.

 

They also used a guarantee in 1997 from a business loan that had been discharged in 1996, to make it appear on their system & their solicitors that these loans were secured by my parents house.

 

What we want to establish is.

 

Can a bank alter a customers account without there knowldge or consent ?

In using the guarantee. Did they break the law?

 

By not disclosing to us & the courts the true identity of the "NEW" accounts when they applied the CCJ. If the information contained within the CCJ is innaccurate. How does this affect it's validity ?

 

These were the issues which we wanted to raise.

 

Debbie

 

 

I would think the only possible course of action is not to make application for set aside but to apply for leave to appeal on the grounds that you have only just discovered that the Particulars of claim were erroneous as debt wasn't current accounts but loans which had not been signed for by you.

 

How much were the loans for before extra interest was added? If they were under the regulated amount a ground of appeal would be that the loans were unenforceable becuase you hadn't signed any agreement and then the courts can rule on enforceability. However ten years is a long time and it will depend on strength of evidence you have available.

[DandD]

Hi Josie,

 

It was the Solicitor who said we had a case for set a side. But your right, because the CCJ is 10 years old, we always thought this was a difficult route to take. He was fully aware of this from the beginning. At no point did he consider this to be a major issue.

 

What is our case ?

 

This is what we believed a barrister would decide. This is what we paid £1000 to Stephensons for. Our money is gone, used on punative charges, & we still don't have an answer to any of our questions. We still have absolutely no idea what direction our case should take, or whether or not we even have a case. Stephensons want MORE money, so they can continue......but with what. For the last 2 months they have refused to communicate with us.

 

As for the "NEW" loan accounts. No agreements exist for these accounts. In May we asked RBS to provide all documentation in relation to the set up of these accounts. CMS refused, on the grounds that they have already obtained judgement.

 

Despite this happening in 1996, we have retained all origonal letters recieved from the bank. We can prove in court that they did not inform us what was going on. Infact we can now show they were deliberatly withholding vital information from us. We did a SAR on the banks solicitor, the info passed to them differs from what they were telling us.

 

Debbie

[car2403]

10 days or 10 years - it doesn't matter. If you have grounds for setting aside, you have grounds, regardless of the timescale involved. CPR states the Court should consider how quickly the application for a set aside is made, but that would be how quickly after discovering you have grounds for setting aside that you apply. Judgments years old have been set aside before, on the basis that Court papers weren't received, amongst other reasons, which can be seen on this forum.

[Josie8]

It is far more difficult to get set aside after a long period. If you can put forward potential unenforceability arguments then the appropriate procedure according to Goode & the White book is to ask for leave to appeal though I know set aside of judgments are granted for same if relatively recent.

 

What was the amount that was converted into the so called loan before intertest & charges were put on?

[pt2537]

are you able to say that the agreement is defective at all?

 

If so you can bring freestanding proceedings to obtain a declaration pursuant to section 142 CCA which would render the judgment useless in anycase

[Josie8]

even better if you can do s.142 route as PT says - thats why i wanted to know loan amount

[car2403]

are you able to say that the agreement is defective at all?

 

If so you can bring freestanding proceedings to obtain a declaration pursuant to section 142 CCA which would render the judgment useless in anycase

 

Wouldn't that, effectively, be an application to set the Judgment aside though, Paul? I can't see the Court dealing with a s.142 application without wanting to see the original Judgment being set aside first, IMHO. Also, the CCJ is a cause of action on it's own, so getting the s.142 application granted would still mean the CCJ is enforceable via the Court, until it is set aside.

[Josie8]

Wouldn't that, effectively, be an application to set the Judgment aside though, Paul? I can't see the Court dealing with a s.142 application without wanting to see the original Judgment being set aside first, IMHO. Also, the CCJ is a cause of action on it's own, so getting the s.142 application granted would still mean the CCJ is enforceable via the Court, until it is set aside.

 

 

No as PT says a s.142 declaration can be applied for at any time to determine the rights of the parties (i.e. enforceable or not). If court declares actual agreement to be unenforceable then all enforcement proceedings halt.