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

[leedoe]

 

 

Received this reply from RBS would i be right in thinking they are using cca 1974 as amended 2006? Should i reply to them?

[rory32]

Could you blow them up a bit or import them through photobucket as they're far too small to read.

[Monty2007]

[attach]5551[/attach]

 

[attach]5552[/attach]

 

[attach]5553[/attach] Received this reply from RBS would i be right in thinking they are using cca 1974 as amended 2006? Should i reply to them?

 

Hi leedoe

As Rory says, the documents are too small to read, you need to either use photobucket or attach each of the documents as pdf's or word documents.

If they are using the 2006 Act then you need to remind them of:

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.

It was in your defense anyway so there should be no ambiguity in this respect.

[leedoe]

Hi sorry not to clever with a computer i will just write out what they say."please find enclosed a "true copy"of your agreement... When responding to requests made under section 77 the bank may provide you with a "true copy"of your agreement in accordance with Regulation3(1) of the consumer regulations 1983.This means that under section 77 there is no obligation for the bank to provide you with a copy of the original agreement bearing your signature.A "true copy"does not need to contain any personal information relating to you as the debtor nor does it need to include a signature box,any signatures or dates of signature". They have included a credit agreement with figures.APR,etc but no signatures.

[Monty2007]

Hi sorry not to clever with a computer i will just write out what they say."please find enclosed a "true copy"of your agreement... When responding to requests made under section 77 the bank may provide you with a "true copy"of your agreement in accordance with Regulation3(1) of the consumer regulations 1983.This means that under section 77 there is no obligation for the bank to provide you with a copy of the original agreement bearing your signature.A "true copy"does not need to contain any personal information relating to you as the debtor nor does it need to include a signature box,any signatures or dates of signature". They have included a credit agreement with figures.APR,etc but no signatures.

 

This does satisfy their obligations under S77, but they will need to produce the original copy in court.

[rory32]

So they are not willing to supply an enforceable agreement then. Perhaps they don't have one

[leedoe]

So should i reply to them?

[Monty2007]

So should i reply to them?

 

There is no need to, this is now in litigation and the relevant response is in your defence that their sols will have copied to them.

[leedoe]

Ok cheers ,what happens now regarding court case? will their sols contact me?

[Monty2007]

Ok cheers ,what happens now regarding court case? will their sols contact me?

 

Hi Leedoe

 

Your defense was due in on 20th right? so you and their sols now have 10 weeks of "adjustments" to the pleas-in-law so they need to respond to you in the first instance. I am a week ahead of you and have not had a peep out of BTO, it may be that they simply let it go to an options hearing where the Sheriff will give some directions in relation to the case management. There is a requirement on you to submit new pleas or modify your current ones a few days before the options hearing.

 

Let us know if you get anything in the meantime otherwise just PM a week before your options hearing date so we can re-submit pleas.

[leedoe]

Ok cheers Monty

[leedoe]

IMG.pdf received this reply from sols today any advice most welcome

[Monty2007]

Dear Leedoe

 

Had they provided either of these documents following you S77/S78 or SAR requests?

 

Did they supply default notices and if so, do they comply.

 

I cannot comment on the loan agreement but the credit card document is an application and does not contain the prescribed terms and is illegible in any case. I cannot see this being enforced.

 

You need to get comments on the loan agreement.

 

There is plenty of time to resond to these amendments so no need to rush. I will take a look at Hennessy and come back to you.

[leedoe]

The loan agreement is the one the bank supplied after i sent the s77 request the bank said then they dont have to provide a copy with signatures. The application form they have sent is for a student account and not an advantage gold account as they claim and it is almost totally ineligible.Surely if they have the signed loan agreement they would produce it now or can they wait until it goes to court and then produce it?I haven,t had a response from the sar request yet.

[leedoe]

bump

[Monty2007]

bump

 

Hi leedoe

 

When is your last day for adjustments?

 

Have they made any further adjustments to their pleas or initial writ?

[leedoe]

Hi sorry i haven,t been on for a while had a few family probs.Regarding my case i decided to go to a sol after learning i qualified for advice and assistance for 90quid he seemed clued up on everything and seemed quite confident that no signed agreement then they had no chance. went to see him today and he has done nothing regarding the case .The preliminary pleas have to be in by 23/3/09 and the options hearing by 27/3/09 he is now saying they don't need to produce a signed agreement all they need is someone from the bank to say they have seen the original document and it would look like the unsigned document they have supplied he also says because i was in a debt management plan i have acknowledged the debt and as such would be difficult to win.Any advice appreciated especially regarding signed docs is it 100% no signed agreement then it cannot be enforced by a court?

[Monty2007]

Hi sorry i haven,t been on for a while had a few family probs.Regarding my case i decided to go to a sol after learning i qualified for advice and assistance for 90quid he seemed clued up on everything and seemed quite confident that no signed agreement then they had no chance. went to see him today and he has done nothing regarding the case .The preliminary pleas have to be in by 23/3/09 and the options hearing by 27/3/09 he is now saying they don't need to produce a signed agreement all they need is someone from the bank to say they have seen the original document and it would look like the unsigned document they have supplied he also says because i was in a debt management plan i have acknowledged the debt and as such would be difficult to win.Any advice appreciated especially regarding signed docs is it 100% no signed agreement then it cannot be enforced by a court?

 

Dear Leedoe

 

The response from your "solicitor" is not surprising since I found the same - many don't have any experience on the Consumer Credit Act. Did you have any further adjustments from the one you posted and is dated 6th Feb 2009?

 

The credit card application is pants and I can help you with your response to their adjustments, I can do this tomorrow so you will be able to respond before the record closes on Monday. Remember you have to provide a copy to the Sheriff Court and anderson fyfe.

 

I am not sure about your loan agreement. I suggest that you start a new thread on the loan agreement and mark it urgent, it is not my area.

 

I will be able to do some work on your credit card response before tomorrow lunchtime and post it up.

 

You can always file a Rule 22.1 note (rely on your preliminary pleas) and also request an extension to the adjustments, being a Party Litigant is a reasonable excuse. I would suggest we respond to their adjustments and also file a Rule 22.1 note and ask for an extension so you can get more input into your loan agreement. BUT you will have to file the Rule 22.1 note tomorrow, I will get somthing posted up later tonight so you can take a look and decide what to do.

 

Let me know if you are in agreement?

[leedoe]

amended writ from rbs sols.IMG.pdf

Doc2.doc

[Monty2007]

amended writ from rbs sols.[ATTACH]7194[/ATTACH]

 

Dear Leedoe

 

If your adjustments period ends on 23rd then you need to get a Rule 22.1 note into the Sheriff Court tomorrow plus send a copy to the other side. I suggest the following:-

 

 

Court Reference Number: xxxxxxxxxx

 

 

SHERIFFDOM OF xxxxxxxxxxx AT xxxxxxxxxxxx

 

 

 

NOTE OF BASIS OF PRELIMINARY PLEAS FOR THE DEFENDER

 

in causa

 

xxxxxxxxx

xxxxxxxx

xxxxxxxxx

PURSUER

 

against

 

xxxxxxxxx

xxxxxxxxx

xxxxxxxxx

DEFENDERS

 

 

 

The Defenders wish to rely upon their Preliminary Pleas numbered 1, 2 and 3.

 

The Defenders also requests the court to grant a further period of adjustments to their answers and pleas-in-law in order to respond to the new material introduced by the Pursuers in their adjusted Writ. The Defender has not had the opportunity to respond to the Pursuers adjusted Writ and, specifically, the Inventory of Productions submitted therein.

 

The Defenders therefore requests a period of further adjustments to allow their response to this evidence to be lodged in the record.

 

The Court is advised that the Defender is a Party Litigant.

 

In respect whereof

 

 

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

 

 

Date: xxxxxxxxxxxxx

Xxxxxxxxxxxxxx

Xxxxxxxxxxxx

Xxxxxxxxxxxx

xxxxxxxxxxx

 

DEFENDERS

Edited March 19, 2009 by Monty2007
error

[leedoe]

Thanks for pm Monty im not too worried about od i received statements today regarding the account i was maybe thinking of counter claiming for the charges on the account but since the record is closed that avenue seems closed unless i get an extension since that is the smaller amount then its less of a worry.My only defence for the loan is they have not produced the signed agreement is it set in stone no signed agreement then a judge can,t enforce it?

Don,t no if they sent default notice.

Don,t no anything about the pleas my supposed sol meant to be dealing with it but done nothing.

I got a reply from sar request they wanted me to send them signatures(i think not)

[Monty2007]

Thanks for pm Monty im not too worried about od i received statements today regarding the account i was maybe thinking of counter claiming for the charges on the account but since the record is closed that avenue seems closed unless i get an extension since that is the smaller amount then its less of a worry.My only defence for the loan is they have not produced the signed agreement is it set in stone no signed agreement then a judge can,t enforce it?

Don,t no if they sent default notice.

Don,t no anything about the pleas my supposed sol meant to be dealing with it but done nothing.

I got a reply from sar request they wanted me to send them signatures(i think not)

 

If the loan agreement is not properly executed then no, it cannot be enforced BUT you really have to structure a defence that gives you the opportunity to present and argue this in court. This is absolutely key in an ordinary cause case since there is more emphasis on procedure. The options hearing lasts 5-10 mins and you need to be prepared, they will have a solicitor advocate and will have first pitch.

 

The solicitor you found sounds like a nightmare, has he experience of civil litigation in Scotland? I could not find anyone who could or would represent me so I am doing it myself. If I fail then I can only point the finger at one person (ME). Why did he throw in the towel?

 

If you are going to counter claim then you will have needed to have submitted this as part of your defence, it may be that when you do they remove the overdraft claim but IT HAS TO BE PART OF YOUR DEFENCE. I think you will need to submit a Rule 22.1 note and request an extension to the adjustments so you can get your counter claim on the Record (the formal one that is going to be CLOSED which means thats it), otherwise you will not be able to do so plus your pleas will be repelled. Have they submitted a Rule 22.1 note (i.e. similar to what I posted).

[leedoe]

Thanks for letter Monty just one question what are my preliminary pleas 12&3? sorry for being thick and does it go to sheriff clerk?

[Monty2007]

Thanks for letter Monty just one question what are my preliminary pleas 12&3? sorry for being thick and does it go to sheriff clerk?

 

Hi Leedoe

 

See your post no 33. The pleas come at the end of the defence (or the writ in the case of the Pursuer).

 

Your was:-

 

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

 

 

The Rule 22.1 Note gives the Sheriff and other side notice that you are relying on these pleas should they proceed to a legal debate, proof or proof before answer. The best option is a legal debate since you automatically get a second go since it will be follwed by a proof (hearing of evidence).

 

You should get your Rule 22.1 note in tomorrow, it has to be lodged with the Sheriff court at least three days before the options hearing so you are on the wire tomorrow.

 

You need to get some advice on the loan document, I would start a separate thread and mark it URGENT.

[leedoe]

What exactly will happen at the options hearing? what will i need ?

I am seeing sol tomorrow but no confidence in him he has done nothing regarding the case he is looking for £90 for advice and assistance and only now he is filling in forms for legal aid which has to be approved by monday!

I don,t think they have submitted a rule 22.1