rbs Ordinary Cause citation £15k unsecured loan and 1.5k overdraft - Glasgow **WON+COSTS**

[leedoe]

Hi

hope someone out there can give me some advice .

 

I received a writ from rbs regarding 15k unsecured loan and 1.5k overdraft .

I have been in a dmp for 2 years but recently reduced payments

rbs not accepting new offer and have now started legal action at glasgow sheriff court.

 

I filled in form 07(nid) and returned to court

 

i am looking for some help in drafting a defence.

 

I sent a cca request on 17/12/08 it was received on 24/12/08

no reply yet but i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it.

 

When i took the loan originally i was forced to take their ppi (which i got cancelled 2 years ago but no refund)

also i was never given a copy of the agreement.

 

Any advice would be appreciated thanks

[42man]

Hi Leedoe, and welcome to the CAG forums...I'll move to the 'Scotland' debt forum for you where you should hopefully get some more comment / advice

[blueda]

Hi Leedoe, i take it you are still paying RBS through DMP ?. When you requested CCA from RBS, legally they have 12 days +2 to supply CCA, which they have not done, there are template letters on this site to copy, the first letter requesting the CCA, which is advised to be sent by first class recorded delivery, with a postal order for £1.00, and dont sign the letter, there is a follow up letter after the time is up, i advise you to look at the letters, it looks for now that the debt is unenforceable, unless the bank produces a valid CCA, keep on this site and you will get the full advice you need to sort out the bank, im still learning and there are other site members with far more experience.

[leedoe]

Thanks blueda what i now need to know is does my defence need to be in by a certain time i put my NID in on 5/01/09 also i would appreciate some help in constructing a defence if anyone can help

[blueda]

I dont see this going to court, especially if you use the information available on this site, ive been threatened with court action before and the nearest it ever got was one time in 2003 when the DMP i was with was found to be crooked and RBS had not been payed for a time,result a Kilmarnock sheriff court decree on my credit file. They need a valid CCA on the account to do this. Im going to contact a Platinum site member to visit this thread and give you the further advice you need.

[blueda]

http:www.consumeractiongroup.co.uk/forum/letter-templates/146154-creditors-dcas-letter-templates.html

 

Above is the link to the letter templates listed in alphabet order, letter N is the DCCA request and other letters, keep visiting this site and keep in touch.

Edited January 8, 2009 by blueda
Link Not Working

[blueda]

Leedoe, regarding the PPI, many of these policys have been mis-sold as they often do not cover the customer ie if you are self employed, you may be entitled to a refund plus interest if you follow the guidlines. It is a bit quiet on this forum today, it is uasually busier. Any way dont panic as the way i see it the bank does not have a case for letting this go to court.

[rory32]

leedoe what does the initial writ state?

 

i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it.

Did they do this in writing or verbally?

 

Have you asked for any other documents other than a copy of the agreement?

 

Do you qualify for legal aid?

[leedoe]

Hi rory

the initial writ states

 

CONDESCENDENCE

first part is just about jurisdiction .

No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.

 

The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numbered xxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.

 

The said sum is repayable on demand.

 

No4 The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.

 

PLEA IN LAW

The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.

 

Decree therefor should be granted as craved.

 

The bank told me over the phone the agreement was lost.

 

I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .

 

Recieved court timetable today my defence has to be in by19/01/09.

 

Any adjustments to the writ or defences by 13/03/09.

 

preliminary pleas and grounds in by 23/03/09

Options hearing on 27/03/09.

 

any help you can give would be appreciated.

 

Any help out there?

 

still looking for some help please

[Monty2007]

Hi leedoe

I assume that this is an ordinary cause action.

 

You have filed form O7 (NID) so you now have 14 days to prepare a defence. I am in the same position as you but with a credit card. The Scottish process is very different to English jurisdiction but the legislation that you will be using in your defence is the same (i.e. 1974 CCA and SI

 

Can you clarify if you have received the "Intimation of Options Hearing" yet from the Sheriff Court Service? This will show the dates that you must conform to in respect of a defence, adjustments and options hearing if it gets that far.

 

What are you planning to do? go for a non-enforceable credit agreement

Can you post up the agreement, default notice and any key pieces of information minus any personal details? I am slightly ahead in my defence and action and have spent the week reading "Civil Procedure and Practice" by Hennessy which is worth getting hold of if you can. It explains the whole process for Scottish civil actions.

 

The first stage of the defence and plea-in-law within the Scottish process is to answer each statement made in the Condescendence section (this is really the English equivalent of the PoC). You need to watch out though since some statements will include both items that you want to admit (i.e. the agreement is regulated by the CCA 1974 Act) BUT not admitted (i.e. the agreemment is regulated by the CCA 174 Act as amended).

 

You should use one of the responses below to each statement in the Condescendence;

 

1. Admit ("it is admitted that...")

2. You don't know ("It is not known and not admitted that...")

3. Deny ("It is denied that.........")

4. If you have an explanation, ("It is explained that.......")

 

The response must be honest though.

 

At the end of your defence and response you will need to give a plea-in-law, however this can be changed during the process as the Defender and Pursuer make adjustments to the writ and defence. I have used the following:

 

 

 

PLEA-IN-LAW

 

 

 

1. The documentation provided by the Pursuer to the Defender under a Subject Access Request and a formal request made under Section 78(1) of the Consumer Credit Act 1974, do not conform in form or content to Section 60(1) of the same Act and as such are unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuer as unenforceable.

 

2. Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed.

 

3. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

In respect whereof

 

 

Signed .................................................................

 

 

Date: xxxxxxxxxxxx

xxxxxxxxxxx

xxxxxxxxxxx

xxxxxxxxxxx

 

 

DEFENDER

 

 

If you have not received all the documents that they mention in ther writ then you will need to do an Incidental Application to the Sheriff which is a request to grant an order to have the Pursuers disclose these to you. I am doing one at the moment.

 

Sorry, just spotted you have the Information of Options Hearing from the Sheriff so you need to prepare a defence by 19th Jan. You need to post up the docs minus any personal information. I can share my defence with you and help as much as I can. I am not a lawyer though and simply relying on using Hennessy's book on Scottish Civil Procedure and Practice plus a few tips from various people.

 

It maybe that you lodge a defence and they drop the action. The options hearing will be a challenge and any subsequent legal debate would almost certainly need a lawyer.

 

I have spoken to a few firms but they either do not have any experience of civil litigation relating to the CCA 1974 or just say you have no chance and to admit. Drummond Miller wanted £5 K and £2 K up-front, he still knew less than me! So I decided to have a go on the basis that if you don't defend then they get judgement in their favour so its a no brainer really.

[leedoe]

Hi Monty2007, there is no mention of any documents in the writ, only the amount of the loan and the overdraft, I have posted up the condescendence as it is worded exactly and as you can see there is no mention of any documents. So my question would be is my defence an unenforceable agreement? and how do I go about getting the relevant information, i.e, any charges on loan/and charges on overdraft and any other paperwork relating to my accounts, also can initial defence be ammended when I get relevant information, also do you have a draft letter to request such paperwork?

Thanks Leedoe

[Monty2007]

Dear Leedoe

 

Then I would suggest denying all of their statements within the condescendence, you must do each in turn and the format and numbering has to be the same and in order. You can then use a similar plea to me. If it is a regulated loan it is strange that they are not using the CCA 1974 act.

 

This is a suggested draft defence with plea-in-law according to what you have posted.

 

You need to look at their wording again and check that the numbering is correct and statements within each section. The plea in law is not that important at this point since following your submission (to the Sheriff Court and Pursuers sols) then they will have to respond to each point in your defence. In the meantime you should issue and Incidental Application to have them produce documentation in support of their claim.

 

Have you undertaken an SAR request on the OC and a S78(1) request? We don't have CPR31.16 in Scotland so an Incidental Application is the next best thing. I am about a week ahead of you so can give you what I know but please remember I am now a lawyer and learning as I go along (literally)!

 

Just a few additional thoughts:

 

You will have to modify the CCA request since this is a loan rather than a credit card. You need to clarify what requests you have made in relation to the loan and overdraft. It is odd that they have combined the two together.

[rory32]

You will need to change the defence regarding the overdraft. Overdrafts have part V (form and content) exemption from the Act so the copy of the agreement would simply be a letter from the bank.

[Monty2007]

Hi Rory

 

It is odd that they have failed to mention that there is a regulated agreement (CCA 1974)? I suppose they must have done it on purpose given that they have combined a loan agreement with an OD.

 

It would be good to see the letter in which the bank admits it does not have the agreement.

[leedoe]

The only letter I have requested is a copy of the loan agreement, the bank received this request on 24/12, they did not admit in writing that they don't have it only verbally over the phone, sorry cant open that document you sent, how do I undertake a subject access request?

[Monty2007]

leedoe said:

The only letter I have requested is a copy of the loan agreement, the bank received this request on 24/12, they did not admit in writing that they don't have it only verbally over the phone, sorry cant open that document you sent, how do I undertake a subject access request?

 

Try this for a Subject Access Request:

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

This is a suggested Defence, you will have to modify it since I wrote this for a credit card defence and you have a loan so you will need to quote the relevant parts of the CCA.

 

Court Reference Number: xxxxxxxxx

 

 

 

SHERIFFDOM OF xxxxxxxxxx AT xxxxxxxxx

 

 

in causa

 

xxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

PURSUER

 

 

against

 

 

xxxxxxxxxxx

xxxxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

DEFENDER

 

 

 

 

 

DEFENCE

 

1. The Pursuer states, “The Defender has resided within Scotland for a period in excess of three months and presently resides at the address specified in the instance”.

 

This is admitted .

 

 

2. The Pursuer states that, “the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx”.

 

This is admitted.

 

 

The Pursuer states that, “as at 10 November 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one”.

 

This is denied. It is explained that the agreement between the parties is therefore regulated by the Consumer Credit Act 1974. It is further explained that on xx/xx/xx the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 78(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer failed to supply the executed credit agreement as defined under Section 78(1) of the Consumer Credit Act 1974. The Defender subsequently informed the Pursuer that the account was in dispute and has responded similarly to various companies that the Pursuer has appointed in relation to this matter.

Section 78(1) of the Consumer Credit Act 1974 states:

 

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the state of the account, and

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

In response to the purported credit agreement supplied by the Pursuer, it is denied that this is a valid executed credit agreements within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document supplied to the Defender fails entirely to comply with Consumer Credit legislation as stated below.

 

The documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

It is explained that the document supplied by the Pursuer does not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1) of the Consumer Credit Act 1974. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable and cited below.

 

 

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

If the agreement does not contain these terms in the prescribed manner it does not comply with Section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order. Notwithstanding this, the agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

The courts powers of enforcement where agreements are improperly executed by way of Section 65 of the Consumer Credit act1974 are themselves subject to certain qualifying factors. Under Section 127(3) of the Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where Section 65(1) has not been complied with Section 127(3) the court shall not make an enforcement order under Section 65(1) if Section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

3. The Pursuer states, “the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numbered xxxxxxx and as at 10 November 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two. The said sum is repayable on demand”.

 

This is denied. It is explained that the Pursuers have failed in their obligation as Pursuant to a Section 78(1) request under the Consumer Credit Act 1974.

 

 

4. The Pursuer states, ”The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary”.

 

This is denied.

 

 

 

PLEA-IN-LAW

 

 

1. The Pursuer has failed to supply the Defender under a Subject Access Request and a formal request made under Section 78(1) of the Consumer Credit Act 1974 copies of the regulated credit agreement. Accordingly this alleged debt is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuer as unenforceable.

 

2. Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed.

 

3. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

In respect whereof

 

Signed .................................................................

 

Date: xxth January 2009

Xxxxxxxx

Xxxxxxxxx

Xxxxxxxxx

xxxxxxxxx

 

DEFENDER

 

 

[leedoe]

Thanks for that Monty great documents, just acouple of points does the SAR request go to baank or SOL or both and should there be any mention of the legal action ?Also i haven't sent them a letter yet putting the account in dispute should i do this now?I will try and adjust your defence acccordingly and post it up for you to have a look at .Again many thanks for your help

[Monty2007]

Hi leedoe

 

You need to send the Subject Access Request to RBS along with the £10 fee. You may wish to add the following:-

 

"Given that this matter is the subject of legal action your immediate compliance is requested in respect of this matter. Any delay may cause problems in the submission of my defence which I would have to bring to the attention of the Sheriff".

 

You may also want to consider sending this to their Sols:-

 

 

Royla Bank of Scotland Limited -v- you

In the Sheriffdom of xxxx at xxxx

Court Reference Number: xxxxx

REQUEST FOR INFORMATION

 

Dear Sirs

 

REQUEST FOR INFORMATION

 

On xxxxxxxxxxx, I received a court claim from your firm as referenced above. I write to inform you that I intend to defend this Claim.

 

In order for me to file a defence and counter claim, I require some further information from you. Given that this matter is now the subject of legal proceedings, I hereby request that you provide me with the information and documents detailed below within seven days of the receipt of this letter.

 

1. I require you to supply me with true and signed copies of the executed credit agreements to which you refer in your claim, together with any terms and conditions that applied to these accounts at the time they were opened and those at the time of the alleged defaults. In this respect, your attention is specifically drawn to the compliance of such documentation as prescribed under Section 78 (1) of the Consumer Credit Act 1974 (hereinafter referred to as “the Act”).

 

If it transpires that no such documentation exists, or is in a form that would render any alleged debt unenforceable, you must write to tell me within the prescribed time limit given above.

 

 

2. All records and correspondence that you hold on me relevant to this claim, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm and/or your Client.

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts formerly held with your Client.

 

c. True copies of the default notices that your Client alleges to have been served to me, as required under the Act.

 

d. Details of any collection charge(s) added to the accounts; specifically, the date such were levied, the amount of the charge(s), a detailed financial breakdown of how the charge(s) were calculated, and what the charge(s) covers.

 

3. Any other documents that you seek to rely on in court.

 

 

Sorry, the formatting went astray so you will have to modify.

 

The key message is that their sols may well ignore your request for information, we don't have the CPR equivalent in Scotland but they will have to submit documents later on in the process.

 

The phase of lodging defences (that you are about to enter) is, to some extent, a resolution of non core issues as such. The defence that you submit will go to the Sheriff Court and Pursuer but subsequent adjustments will be directly between you and the RBS solicitors.

 

There are a few things that you will have to do as it gets toward an options hearing but don't worry for now, am a week ahead so can let you have my case progress and history.

 

Right now just focus on taking baby steps as I have done and get the defence and legal refereces to the relevant acts (in relation to loans rather than credit cards).

 

Best read the RBS threads even though all will be based on English law, the Acts and SI are the same so you will be able to get the information and the process is similar in some respects.

 

If their sols do not conform to your document request by the time you submit your defence then we can send the Sheriff and Incidental Application that will be a request to order the Pursuers to produce the docs since they will otherwise be hampering your defence and stall the adjustments process.

 

leedoe said:

Also i haven't sent them a letter yet putting the account in dispute should i do this now?I

 

I would not bother, they are litigating against you. Did they send you a default notice or termination letter/notice?

 

If they did please post it up minus personal details. If they did not then they are in the s**t.

 

leedoe said:

The only letter I have requested is a copy of the loan agreement, the bank received this request on 24/12, they did not admit in writing that they don't have it only verbally over the phone, sorry cant open that document you sent, how do I undertake a subject access request?

 

Can you post up the letter you sent (always delete any personal details or anything that can link you to the case)? Was it a Section 77 request under the CCA 1974 plus £1 fee?

 

If this is not done exactly then they will just ignore. A lot of this is about following process and getting the detail correct. Thankfully all you need is basically here and the plan is to get them to realise that:

 

(i) without an enforcable agreement then they do not have a case and would be stupid to go to options hearing or legal debate

(ii) you are up for the fight.

 

Clearly you are going forward on the basis that they do not have a credit agreement or one that has the prescribed terms. So the Sheriff will have to declare the debt as unenforcable under S142.

[leedoe]

We downloaded the letter from national debtline under section 77/79 and sent them £1 postalorder, Should the fact that they forced us to take the PPI form part of the defence and should we put a counter claim with the defence for a refund of the charges put onto the overdraft? Also on the condescendence the type of the account is wrong, but the account no is correct, will this matter? and at this stage should our defence be as detailed even though we have no documentation from them. Also do you know were online I can access previous court cases/findings, as I got a copy of that book you suggested and this quotes these cases but would like to look into these. thanks

[Monty2007]

Dear leedoe

 

Good, if the letter covers a S77/79 request then this is capture all, the only potential problem is that they send you a reconstruction or application form then this will satisfy the CCA. They may not wish to tell you that they don't have it, typically they will say that this is what it would have looked like so may not get you anywhere. Anyway it is worth doing as is an Subject Access Request also even if you have done one previously since there may be useful information (as I found with Amex).

 

With respect to Ordinary Cause case history regarding the CCA, I could not find any on CAG or elsewhere. Hennessy's book on procedure gives the ordinary cause action process/procedure and useful information but you will not find cases that are specific to what you/we are doing (sadly), however there are English cases (on CAG) where we will be using the same Acts and arguments so don't be put off. We are essentially taking the equivalent arguments in English law/case history and using them within the Scottish legal process and procedure. It should work the same.

 

I submitted my defence today and pleas in law today. There is nothing to stop you from denying all their statements and using the same pleas in law that I have used. The scond one, i.e. stating that "thePursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed" is really telling them that there is no legal basis for their action, this is supported given they have not provided documentation. This also tells them that you are willing to go to proof and although these are preliminary pleas they should be submitted as final pleas which are required if it gets to an options hearing.

 

The defence you submit initially has to be responded on, point by point, by the Pursuer and they have to produce the documents at the proof or their cravings not granted (case dismissed). Hence it is worth stating the relevant parts of the CCA in your defence now and putting them on proof to produce evidence to substantiate their claim.[/

 

Clearly, if you have not requested the agreement using the provisions of S77-79 then you can't state you have. Rather use the wording, "Denied, it is explained that the Pursurs have not provided any documentation to sunstantiate their claim as craved. The Defender has now requested, under S77-79 of the Consumer Credit Act 1974 that the Pursuers supply them with a true and signed copy of the agreement. You may also want to say what this should contain, as I have done. Thus there can be no ambiguity as to what the legislation is and what is required to conform.

 

That has been my approach

 

Very few civil litigation cases get to options (25%) and fewer to legal debate. They know they have no docs so are just trying to scare you into throwing in the towel now. I feel I have nothing to lose since if I don't defend then they win anyway.

 

I have not done a counter-claim since they refunded my charges. It may be worth you doing a counter-claim for PPI and charges as part of your defence. What would be the difference in the sums they are suing for? i.e. would the difference bring you from an ordinary cause into a lower class of claim, this may be a useful tactic if it is.

 

My only worry here is that a counter claim involves a lot of work and it may be interpreted as acknowleding the debt and could cause complexity. It is you call and you would have to think carefully about the process for doing this. As I mentioned previously, I am not a lawyer and have no legal training, my only sources are Hennessys book, CAG and a few other sites.

 

Have you thought about using the Govern (Govan?) law centre that are a charity in Glasgow specialising in helping litigants? may be useful.

[leedoe]

Hi Monty the ppi would be about £1600 if refunded, the reason i asked about it was i was told because they had forced me to take the ppi there could be a case for challenging the loans legality.Tried govan waste of time.

[leedoe]

another quick point would i have recieved the default/termination notice recently? can,t remember if i got one

 

Court Ref No;

 

 

in causa

Royal Bank Of Scotland Plc,

36 St Andrews Square,

Edinburgh,

EH2 2YB

 

PURSUER

 

AGAINST

xxxxxxxxx

 

DEFENDERS

 

DEFENCE

 

1. The Pursuer states, “The Defender has resided at xxxxxxx for a period in excess of three months and presently resides at the address specified in the instance”.

 

This is admitted .

 

 

2. The Pursuer states that, “the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxxx”.

 

This is admitted.

 

The Pursuer states that, “as at 10 November 2008 has drawn on the said account to the extent £xxxxxxxx which is the sum sued for in crave one”.

 

This is denied.

 

It is explained that the agreement between the parties is therefore regulated by the Consumer Credit Act 1974. It is further explained that on 24/12/08 the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 77(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer failed to supply the executed credit agreement as defined under Section 77(1) of the Consumer Credit Act 1974. This therefore places the agreement in default.

 

Section 77(1) of the Consumer Credit Act 1974 states:

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

It is explained that at the time of signing the loan agreement the defender did not receive a copy of the said agreement, nor was a copy received within the required 7 days after signing, section 63 (1) (2) of the consumer credit act 1974.

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

It is stated that under section 63(5) a regulated agreement is not properly executed if the requirements of this section are not observed. It is also stated that under section 65(1) of the comsumer credit act 1974, "an improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only".

 

It is explained that at the time of taking the said loan the defenders were forced to take a PPI policy, as the defenders have never received a copy of the original loan agreement. It is unknown if the prescribed terms in said agreement are correct. The agreement would become a "multiple agreement"and it would fall within section 18 consumer credit act 1974.

 

18 Multiple agreements

 

(1) This section applies to an agreement (a “multiple agreement”) if its terms are such as—

 

(a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreements so mentioned, or within a category of agreement not so mentioned, or

 

(b) to place it, or a part of it, within two or more categories of agreement so mentioned.

 

 

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

 

If the agreement fails to set matters out in accordance with section 18 consumer credit act 1974, then the pursuer may not have adhered to the requiements of section 60 consumer credit act 1974;

60 Form and content of agreements

 

 

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

 

(2) Regulations under subsection (1) may in particular—

 

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

 

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

 

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

 

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

 

and the agreement could be improperly executed as set out within section 61 (1a) consumenr credit act 1974;

 

61 Signing of agreement

 

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,

 

thus the agreement becomes unenforcable.

 

3. The pursuer states "the defenders jointly and severally obtained loan facilities from the pursuers on an advantage gold account now numbered; xxxxxxxx

 

This is denied.

 

The defenders have never had an advantage gold account no; xxxxxxxxx.

 

The pursuer states "and at 10th November 2008 has drawn on the account to the extent of £xxxxxxx, which is the sum sued for and craved to the said sum is repayable on demand".

 

This is denied

 

The defenders have never received any paperwork pertaining to the said sum and as such the sum sued for is denied.

 

4. The pursuer states "the pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary".

 

This is denied.

PLEA -IN-LAW

 

1.The pursuer has failed to supply the defender with a copy of the regulated credit agreement made under a formal request of section 77(1) of the consumer credit act 1974. Accordingly this alleged debt is unenforceable under section 127(3) of the same act. The defender craves that the court uses its powers under section 142 of the consumer credit act 1974 to dismiss this action as unenforceable.

2. Accordingly given the pursuers averments are irrelevant et separatism, the action should be dismissed.

3. The defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

In respect whereof

 

this is a copy of my proposed defence any comments/advice most welcome

[rory32]

Section 127(3) was repealed by the 2006 Act. However the changes to the Act are not retrospective so if you signed under the 1974 Act then section 127(3) still applies. I think you will have to mention this in your defence as the other side may raise the issue of the repeal of this section of the Act.

[Monty2007]

Court Ref No;

 

 

SHERIFFDOM OF Lothian and Borders AT Linlithgow

 

 

in causa

Royal Bank Of Scotland Plc,

36 St Andrews Square,

Edinburgh,

EH2 2YB

 

PURSUER

 

AGAINST

xxxxxxxxx

 

DEFENDERS

 

DEFENCE

 

1. The Pursuer states, “The Defender has resided at xxxxxxx for a period in excess of three months and presently resides at the address specified in the instance”.

 

This is admitted .

 

 

2. The Pursuer states that, “the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxxx”.

 

This is admitted.

 

The Pursuer states that, “as at 10 November 2008 has drawn on the said account to the extent £xxxxxxxx which is the sum sued for in crave one”.

 

This is denied.

 

It is explained that the agreement between the parties is therefore regulated by the Consumer Credit Act 1974. It is further explained that on 24/12/08 the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 77(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer failed to supply the executed credit agreement as defined under Section 77(1) of the Consumer Credit Act 1974. This therefore places the agreement in default.

 

Section 77(1) of the Consumer Credit Act 1974 states:

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

It is explained that at the time of signing the loan agreement the defender did not receive a copy of the said agreement, nor was a copy received within the required 7 days after signing, section 63 (1) (2) of the consumer credit act 1974.

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

It is stated that under section 63(5) a regulated agreement is not properly executed if the requirements of this section are not observed. It is also stated that under section 65(1) of the comsumer credit act 1974, "an improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only".

 

It is explained that at the time of taking the said loan the defenders were forced to take a PPI policy, as the defenders have never received a copy of the original loan agreement. It is unknown if the prescribed terms in said agreement are correct. The agreement would become a "multiple agreement"and it would fall within section 18 consumer credit act 1974.

 

18 Multiple agreements

 

(1) This section applies to an agreement (a “multiple agreement”) if its terms are such as—

 

(a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreements so mentioned, or within a category of agreement not so mentioned, or

 

(b) to place it, or a part of it, within two or more categories of agreement so mentioned.

 

 

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

 

If the agreement fails to set matters out in accordance with section 18 consumer credit act 1974, then the pursuer may not have adhered to the requiements of section 60 consumer credit act 1974;

60 Form and content of agreements

 

 

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

 

(2) Regulations under subsection (1) may in particular—

 

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

 

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

 

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

 

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

 

and the agreement could be improperly executed as set out within section 61 (1a) consumenr credit act 1974;

 

61 Signing of agreement

 

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,

 

thus the agreement becomes unenforcable.

 

It is also explained that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for agreements made before Section 15 came into effect. Since any agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and hence the Consumer Credit Act 1974 is the relevant act in this case.

 

The Consumer Credit Act 2006, Schedule 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

(a) The words”(subject to subsections (3) and (4))” in subsection (1) of Section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of Section 185 of that act, has no effect in relation to improperly-executed Agreements made before the commencement of Section 15 of this Act.

 

3. The pursuer states "the defenders jointly and severally obtained loan facilities from the pursuers on an advantage gold account now numbered; xxxxxxxx

 

This is denied.

 

The defenders have never had an advantage gold account no; xxxxxxxxx.

 

The pursuer states "and at 10th November 2008 has drawn on the account to the extent of £xxxxxxx, which is the sum sued for and craved to the said sum is repayable on demand".

 

This is denied

 

The defenders have never received any paperwork pertaining to the said sum and as such the sum sued for is denied.

 

4. The pursuer states "the pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary".

 

This is denied.

PLEA -IN-LAW

 

1.The pursuer has failed to supply the defender with a copy of the regulated credit agreement made under a formal request of section 77(1) of the consumer credit act 1974. Accordingly this alleged debt is unenforceable under section 127(3) of the same act. The defender craves that the court uses its powers under section 142 of the consumer credit act 1974 to dismiss this action as unenforceable.

2. Accordingly given the pursuers averments are irrelevant et separatism, the action should be dismissed.

3. The defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

In respect whereof

 

 

Signed .................................................................

 

 

Date: xxth January 2009

xxxxxxxxxx

xxxxxxxxx

xxxxxxxxxx

 

 

DEFENDER

 

 

Hi Leedoe

 

This is good. You need to (i) state at the top the Sheriff court and jusrisdiction (ii) as Rory correctly states you need to state that the 2006 revision does not apply here - I have used the same and pasted this in in red (iii) It is very important that you check that you have answered each of their specific statements and matched each of their numbered condensedence. Since:

 

Implied admission

9.7. Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.

[leedoe]

Thanks Rory and Monty i will do adjustments and hand in to court tomorrow and keep you informed