Citation Received - Clydesdale bank Credit Card

[pu_mpk_in]

Hi Rory,

 

well the 14 days + 30 days are nearly up and i have still to receive a copy of my CCA

and copies of the notice of assignation to Brunswick Collections.

Are you able to help me draft a reply to them?

 

I need to be aware that the case is on hold with the court

in that the banks solicitors have provided a written undertaking that they will not minute for a decree in absence

at the present time as they are awaiting instructions from their Clients (this being the bank),

as my request in term of the consumer credit act is still outstanding.

 

I did not lodge a notice of intention to defend

as the legal advice i was given was that i did not need to because of the undertaking given

and the fact that if i had lodged a notice of intent to defend it would have set of a timescale for hearings etc

and i would have had to start paying solicitors fees which were to be £180 per day, which i could not afford

as they (Drummond Miller), said i could not be guaranteed to win.

 

i did however, lodge a letter with ther court explaining the lack on notice of intention to defend and why.

 

i asked that he letter be placed with the papers should a minute of decree in absence be applied for by the bank.

 

Do you think you can help?

[rory32]

Let me have a think. I think really we need to give the bank a bit of a push in terms of getting them to drop the action completely and hopefully just write the account off.

[pu_mpk_in]

Thanks Rory,

 

that sounds like a good plan. Thank you

[pu_mpk_in]

:

Let me have a think. I think really we need to give the bank a bit of a push in terms of getting them to drop the action completely and hopefully just write the account off

 

 

Hi Rory,

 

the 30 days have now passed and i have not received anything nor have i had anything to indicate why they have not provided me with a copy of the CCA, have you had a chance to think about a suggested response?

[rory32]

Okay

I've drafted a letter to give them a poke.

 

Please be aware though that this may result in them frantically searching for a copy of the agreement

but if they haven't found it by now I think we can probably assume that they won't.

 

WITHOUT PREJUDICE

 

DearSir/Madam,

 

Re: Account No xxxx

 

It would appear that you have failed in your obligations to provide a copy of the credit agreement originally requested on (date). As considerable time has now passed since the issue of my request I am of the opinion that no such copy of the agreement exists.

 

I am therefore of the opinion that you have also failed in your obligations to comply with the various anti money laundering regulations in not keeping such documents. This, as I’m sure you are aware, is a very serious offence.

 

I now require the balance of this account to be returned to zero and your Sheriff Court claim against me withdrawn. I believe that it is in your companies best interests in order to reduce your legal costs regarding this matter and those that may be claimed against you.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.

 

 

Furthermore, you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following would apply:

• You may not demand any payment on the account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to the account.
  
• You may not pass the account to any third party.
  
• You may not register any information in respect of the account with any of the credit reference agencies.
  
• You may not issue a default notice related to the account.
  

Any continuation of the claim regarding this account would be subsequently avered as vexatious on your behalf.

 

Please also be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached. You may be aware of the case of Durkin v DSG Retail Ltd and HFC Bank PLC 2008 where significant damages were awarded for the wrongful impugnation of Durkin's credit reputation.

 

 

Furthermore, please be aware that your court claim against me could, under the Protection from Harassment Act 1997, be construed as unlawful harassment. It could also be considered an unfair trading practice under The Consumer Protection from Unfair Trading Regulations 2008 as the claim was issued when the account was already in dispute as well as against the Banking Code.

 

I would ask that you review this account and respond favourably within 14 days of the date of this letter. Failure to do so will result in me reporting this matter to The Financial Crime Branch of HM Treasury and any other authorities as I see fit.

 

I look forward to your reply in due course.

 

Yours faithfully

 

Print name do not sign.

Edited December 7, 2008 by rory32
formatting

[pu_mpk_in]

Thanks Rory,

 

"Please be aware though that this may result in them frantically searching for a copy of the agreement but if they haven't found it by now I think we can probably assume that they won't."

 

do you think i should hold off sending the letter?

i'm happy to wait a bit,

but i thought that after the 30 days had past i had to write to them.

if it's better to wait then i can.

what do you think?

[rory32]

No you don't have to write to them after the 30 days.

There is no longer a summary criminal offence committed after the 30 days.

There is no rush for you to send the letter but generally if they can't put their hands on it fairly quickly it's because it's no longer in their system.

 

If you're not comfortable with sending the letter yet then don't.

As I say, there's no rush.

[pu_mpk_in]

Thanks gain for all your help Rory.

 

I'm just not sure what i should do.

 

After i wrote and complianed about them raising legal action while the account was in dispute,

their reply indicated that the case would be sisted pending the response to my request under the Consumer Credit Act.

I have taken this to read that until i receive a response from them i do not need to do anything.

Do you think i should just sit back and wait until they get back to me before i send the letter?

 

Do you know if they are committing an offence by having raised legal action while the account was in dispute?

[rory32]

Do you think i should just sit back and wait until they get back to me before i send the letter?

 

Yes and no. You need to show your hand a little in that you are willing to do things to them, making them aware that it's not all one sided.

 

Do you know if they are committing an offence by having raised legal action while the account was in dispute?

Yes. Personally I would make a complaint to the OFT. As the case has been sisted they may not be overly interested but it's worth a punt. At the very least it shows that you are not bluffing.

[pu_mpk_in]

Your right Rory,

 

is there any chance you could help me compose a letter to the OFT re them raising court action?,

and how do you think i should show my hand a little s

hould i just send your letter and a copy of what i send to the OFT or just a copy of what is sent to the OFT at this stage?

 

i'm sorry to keep asking questions and for so much help

but, as i'm sure you've already noticed,

i am useless at this kind of thing although i am learning and i am very grateful for all the help you've given me.

[rory32]

Let me think about it and I'll try and do something for you tomorrow. I had to get up very early today (and unfortunately have to tomorrow as well)so I'm afraid it's off to bed early tonight for me.

[rory32]

Okay this might still need a little work but here's my first go at your letter to the OFT.

Dear Sir/Madam

 

Consumer Protection from Unfair Trading Regulations 2008 (CPUT)

Formal complaint against Clydesdale Bank

 

 

 

I am writing to complain under the above CPUT regulations.

I have had a court claim raised against me by the aforementioned bank in respect of a purported debt which I understand is governed by the Consumer Credit Act 1974. I formally requested in writing a true copy of the credit agreement on the 14th October 2008 and formally placed the account in dispute.

To date they have failed to supply any document which purports to be a copy of the alleged agreement and on (date) became in default of supplying the true copy of the agreement.

A claim was raised against me on (date) in the sheriff court and although sisted on (date), after an official complaint made by myself to the bank in writing on (date), the claim has not been withdrawn by the bank.

I consider that Clydesdale bank are operating an unfair commercial practice in attempting to enforce an account through the courts which was clearly in dispute before the date the ordinary cause action was raised and it is for this reason that I am sending you this complaint.

I enclose copies of the letters which they have been sending to me and those which I have sent to them.

I would be grateful if you would acknowledge this letter and let me know what procedures you now intend to follow and what your targets for action are.

Yours faithfully

 

sign the letter

This is the address to send complaints to:

 

Enquiries Unit

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London, EC4Y 8JX.

[rory32]

how do you think i should show my hand a little should i just send your letter and a copy of what i send to the OFT or just a copy of what is sent to the OFT at this stage?

 

I would send the letter and a copy of the letter that you're going to send to the OFT.

[pu_mpk_in]

Thank you so much Rory.

 

The letter to the OFT looks good but i'll hold off sending it (and the other suggested letter ), for a couple of days just incase you want to amend it.

 

thanks again

[Monty2007]

Thank you so much Rory.

 

The letter to the OFT looks good but i'll hold off sending it (and the other suggested letter ), for a couple of days just incase you want to amend it.

 

thanks again

 

Hi

I have also received a Citation for two Amex cards,

did you use Drummond Miller's?

I am looking at instructing counsel

and wondered if you had?

My situation is similar to your own but they have only produced a pre-contractual application

which does not contain all the prescribed terms and zilch for the second.

[pu_mpk_in]

Hi Monty,

 

yes it was Drummond Miller Solicitors who gave me legal advice and they quoted around £160 -£180 a day, which is very expensive and why i could not lodge an intent to defend the action.

 

Good luck

[Monty2007]

Hi Monty,

 

yes it was Drummond Miller Solicitors who gave me legal advice and they quoted around £160 -£180 a day, which is very expensive and why i could not lodge an intent to defend the action.

 

Good luck

 

Is this per day or per hour? When I consulted an employment lawyer (Partner) he was 250 quid an hour!

[rory32]

This may not be of any use to either of you,

but have either of you looked into the possibility of receiving some form of Legal Aid.

 

Legal Aid comes in two types of assistance for civil cases,

these being advice and assistance and civil legal aid.

 

While if you are in employment it's unlikely that you'll qualify to have all the expenses of the case paid out of legal

aid you may qualify for some form of contribution towards the expenses

 

Scottish Legal Aid Board Online

[Monty2007]

This may not be of any use to either of you, but have either of you looked into the possibility of receiving some form of Legal Aid. Legal Aid comes in two types of assistance for civil cases, these being advice and assistance and civil legal aid. While if you are in employment it's unlikely that you'll qualify to have all the expenses of the case paid out of legal aid you may qualify for some form of contribution towards the expenses Scottish Legal Aid Board Online

 

Thanks Rory. I suspect that most sols, even those proposing to specialise in consumer debt will be experienced in terms of bringing a case in respect of the 1974 consumer credita act and the arguments we are proposing, or am I wrong?

[rory32]

A lot probably aren't overly familiar with the arguments because they are not used to having to deal with them. They are used to such actions not being defended.

[Monty2007]

A lot probably aren't overly familiar with the arguments because they are not used to having to deal with them. They are used to such actions not being defended.

 

Should I be armed with a stack of information or just point them to a few threads on here?

 

Do the arguments or approach in Scotland differ significantly than in England. Would you be able to provide any strategic directional input if I get to the stage of appointing counsel?

[rory32]

Ah okay you mean defending a case rather than bringing one.

 

Your sols are certainly not going to read threads on CAG. The arguments in Scotland are really the same as in England as the statute is the same.

 

Would you be able to provide any strategic directional input if I get to the stage of appointing counsel?

I can certainly give you a few pointers. Best dealt with on your own thread though Monty.

[Monty2007]

Hi Monty,

 

yes it was Drummond Miller Solicitors who gave me legal advice and they quoted around £160 -£180 a day, which is very expensive and why i could not lodge an intent to defend the action.

 

Good luck

 

Hi Pumpkin

 

Are you able to PM me as to who you spoke with at DM and which office you used. I took a look at their site and they don't specifically mention consumer law as a speciality. I have two firm that do in Ediburgh but would also like to see if DM are up to the job.

 

I really want to get this 100% right from the outset, I have been waiting too long for the end game to mess up.

[pu_mpk_in]

Just a quick update.

 

I sent the letters as suggested in Rory's posts (#55 and #62)

and i've heard nothing from the bank since. Thought it had all gone away and i could move on.

 

I also decided to complain to the FOS about the banks insistance that they had 'sisted' the case

when in actual fact they had not, and to date still have not as i felt they were deliberately misleading me in stating this.

 

Foolish mistake on my behalf as the FOS has decided to look into everything not just my complaint

(which was simply the fact that they had deliberately mislead me by insisting that the case had been sisited when it has not),

but they are asking for the missing credit agreement to be presented to them also.

I'm not usre what good this will do as i am sure the fact that i still have not been sent a copy means that it does'nt exist.

I'm just a bit worried about what FSA outcome will now be

 

What a mess i just wish i had left well enough alone

[IdaInFife]

at lesast you should get some closure and it look;s like they donlt have the agreement anyway

 

 

ida x