RBS Loan and PPI - COURT CLAIM **WON** discontinued

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CCM - I know I have the top man here - its like having the cavalry turn up when you think you're about to be defeated. lol. So grateful.

CCM - your input and willingness to help is also much appreciated.

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withdrew question

Edited April 12, 2009 by sequest

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After some research I believe that the original loan was taken out in 2005 and a year later, when the customer service advisor asked me if I would like to add my overdraft to existing loan as it would be cheaper, another loan was created.

 

PPI was added to first loan without my knowledge and my attention was first drawn to this in late 2008 when I discovered in conversation with bank employee, the sums outstanding were far greater than I thought. Because no loan statements had been sent at any time I was unaware of outstanding balance.

 

It was at this point that sent CCA and SAR request for all information relating to loan, including statements from initial onset of loan.

 

No agreements were forthcoming from this request and only loan statements commencing from start of later loan were sent.

 

 

FOS was contacted and I explained situation regarding loan agreements and PPI. They wrote to bank requesting refund of any PPI added to loan + 8% interest.

 

Approximately 3 weeks after my CCA request, when bank was clearly in default, the claimants solicitors puport that Default Notice was served on me, although I cannot locate this in my correspondence.

 

Approximately 5 weeks following request for agreements, bank replied stating no agreements could be produced as they had been mis-filed.

 

 

Bank wrote several letters over period of a few months explaining that they were investigating the FOS request for refund of PPI and requested my patience in waiting for result.

 

While awaiting outcome of PPI, I made goodwill gesture of reduced payments.

 

End of 2008 received request for full balance of loan unless satisfactory payment arrangements could be arranged.

Court claim issued beginning of February.

 

POC only mentioned 2 accounts - LOAN and CURRENT.

 

Sent embarrassed Defence and requested documents from claimants solicitors, as posted previously. This included request for any agreements which might be relied upon and all loan statements.

 

No documents produced until AQ filing became due.

 

Still no loan agreements and only loan statements starting from later loan.

They sent bank statements, a couple of screen prints showing amount outstanding. Application for SJ included together with Witness Statement. No mention in the statement of loan agreements.

Only reference to transfer of monies between accounts.

 

Now I need to file AQ by hand on Tuesday. Should I be requesting, in Draft Directions, the credit agreements. Now I have some additional documentation, should I file defence at same time/ I did request extention to defence if Claimant provided additional information.

 

PLEASE HELP

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In view of what I have stated above, can anyone please advise me on what I should put in the AQ for Draft Directions.

I need the original agreement, showing PPI added, and the later agreement. Not sure how to phrase that. Also should I put anything else. They have already sent copies of Default Notices.

Incidentally, in the POC they were claiming for an overdraft but now state my current a/c is in credit.

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Any help appreciated - need to submit AQ by tomorrow

[creditcardmug]

Hi, this is what i normally use for the Draft Directions, you will have to add/delete bits to suit

 

I dont know a lot about witness statements, but its a bit like a defence, although shortened.

 

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[creditcardmug]

Obviously you wont need 1c, as it hasnt been assigned.

Item 3 you say they want multi-track, how much is the claim for (minus costs)?

[creditcardmug]

Where is the defence you filed? and their POC?

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Hi CCM - thanks for coming by.

 

The claim is over £10K.

 

Should I submit Witness statement instead of defence?

 

The Claimants have never mentioned an Agreement.

 

When should Witness Statement or Defence be submitted?

 

I am very confused about the order of things at present.

 

I only submitted 'embarrassed defence'. Claimants have only supplied part of documents requested - not most important, such as CCA.

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Original loan was taken out in 2005 and PPI added without my knowledge. When overdraft was added to loan in 2006 the bank must have made a new agreement, although they did say it was to be 'added' to existing loan. How do I get copy of 2005 agreement to prove PPI added. Can I demand the 2005 agreement to prove the PPI.

[creditcardmug]

Ok first if its 10k, stick to fast track

 

The order of things normally is

 

1 claim issued

2 you acknowledge (this gives you a total of 33 days to file a defence)

3 you file a defence (the court sends a copy of it to the claimant, who then has 28 days to indicate to the court its intention to proceed)

4 if the claimants intends to proceed the the court sends out an AQ to both of you to fill in(and transfers the case to your local court)

5 the judge makes an order for directions based on the two AQs, and his own judgement

6 when the directions have been complied with the court sets a hearing date.

 

Thats the normal way...however either side can intervene with an Application Notice, which appears to have happened here

 

Can you point me to the embarrassed defence you filed, and their POC?

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1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR. Accordingly the Claimants claim should be struck out pursuant to CPR 3.4(2)(a)& ©

 

2. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

3. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon, how the figures claimed are accrued, what type of accounts it is that the claim is based upon. The Claimant even fails to plead whom the money is due to and when the cause of action arose.

 

4.Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit.

 

5.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

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Following letter was sent to Claimant's Solicitors:

 

You -v- them

 

Claim number

 

Dear Sir or Madam

 

I write in relation to the above claim issued in the Northampton County Court.

 

The pleaded case offers insufficient information to allow me to plead a proper defence, i do not recognise the sums pleaded to be owing to one single account and i believe that there has been a grave error in your pleadings, accordingly, i require the following

 

1) i require you to provide me with copies of the agreements under which the amounts pleaded in your vague claim are owed. Additionally where the agreements are regulated agreements which are regulated by the Consumer Credit Act 1974, i require copies of any default notices and a full break down of the sums claimed including how those sums accrued and under what accounts, any PPI and charges added to accounts and also statements showing how the sums claimed are calculated and accrued.

 

I also required detailed information regarding any charges on current account no.xxxx

 

 

 

I require this information by no later than 4 pm on 3rd March 09, I also require you to agree to an extension fo 28 days to allow me to file a proper defence once i am provided with the information which i am seeking.

 

If you fail to reply or fail to provide me with sufficient information to allow me to plead a proper defence i will make an application to the court to order you to plead your case in accordance with the CPR and the Practice Directions and i will seek an order for my costs in doing so.

 

I reserve the right to refer to the contents of this letter on the question of conduct and costs if an application for an extension of time/ discovery of documents/ amendment of pleadings etc is necessary. I cannot plead the defence without the information that has been requested and i am sure that the court will take this view also given that i am a litigant in person.

 

I look forward to your reply County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook.

This comprehensive and very accessible guide will take you through the process of suing or defending a claim.

This guide will help you take control of your litigation and make you more confident about doing it yourself.

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POC

Simply states:

Failed to pay sums due to C when demanded and sums listed below remain oustanding.

 

A/C - loan - £xxxxx

 

A/c - current - £x

 

They have now admitted in witness statement for the SJ that my current A/C is in credit.

[creditcardmug]

Found an example of a witness statement

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-9.html

 

Post 164

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Thanks CCM.

I will take a look.

 

When do you think should I be filing a Witness Statement?

[creditcardmug]

well, im still trying to get my head around just what you should do!

 

So, you filed a defence in response to their pathetic POC (you cant file another one without leave of the court)

 

Then you get an AQ to fill in from the court..but before you have a chance to file it, you get this app. for Summary Judgement?

 

Can you post up what it says?

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I will try to take jpeg as scanner not working.

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Page 2 (left out first page as not relevant)

 

http://i473.photobucket.com/albums/rr100/sequest1/witness2a.jpg

Edited April 15, 2009 by sequest

[creditcardmug]

Too small to read, you might try photobucket, most people seem to use that to upload stuff

 

You have to get the AQ in tomorrow so we need to sort that out, do you have any time frame for responding with a witness statement?

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Sorry, I have uploaded it to photobucket now.

 

the picture should now work.

 

Thank you.

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Other images

 

http://i473.photobucket.com/albums/rr100/sequest1/w6.jpg

 

http://i473.photobucket.com/albums/rr100/sequest1/w4.jpg

[creditcardmug]

I have redone the AQ details

 

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(d) full and complete details of how the sum alleged to be owing under the current account mentioned in the claimants particulars of claim reference number xxxxxxxx has been calculated

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

Edited April 13, 2009 by creditcardmug

[sequest]

If I need the Witness statement for the SJ, then I have some time because Judge will only have received it on Thursday and they will need to inform me officially.

 

However, I am concerned about my defence - I didn't realise that I couldn't amend defence, as it was only a holding one.

[creditcardmug]

Other Information

 

Section I

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further