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

[leedoe]

Ok thanks for advice i will do adjustments both of you suggest.Regarding the ppi i mentioned it in my initial defence and their sols rubbished the claim and said it was lacking in specification so i was just letting them know reasons for it.

Regarding the overdraft they have the name of the account wrong that was the only reason for denying it,and now the documents they have produced are nonsence so i will just carry on denying it.As i said before this is less of a worry than the loan.

Also this copy of my defence does not go to the court only to their sols, who will maybe reply, but he will have to put it in the final record.

[seriously fed up]

ppi, is not something that i know much about - maybe better check with Ida about that (think she knows). Dont know if this is the place to deal with it anyway - they are pursuing you. To reclaim the ppi you might need to raise your own claim (or maybe counter claim them). Not really sure about this, but it would certainly avoid potential confusion. I do think, though that however you do it, its important to avoid confusion between

 

1. what you might claim from them and
   
2. your defence against what they are trying to claim from you.
   

They have the name of the account wrong? Seriously? That is just ridiculous - you will need to be very clear about this, as the Sheriff (reasonably I think) might have difficulty believing that they could be THAT stupid.

Re who to send copies to - NO, copies to BOTH the court and to the other side. BOTH OF THEM - VERY important!

[Coactum]

Re who to send copies to - NO, copies to BOTH the court and to the other side. BOTH OF THEM - VERY important!

You should also ensure that the court can see that you have conveyed a copy to the other party. If you can go to the court in person I'm certain the the staff there will help keep you right. They were most obliging each time I've gone.

[leedoe]

Thanks for advice are you sure copy goes to court ? i thought initial defence goes to court and subsequent adjustments are done between both parties and then the pursuer makes up the record which then goes to court.Have i misunderstood the procedure?

[Monty2007]

Thanks for advice are you sure copy goes to court ? i thought initial defence goes to court and subsequent adjustments are done between both parties and then the pursuer makes up the record which then goes to court.Have i misunderstood the procedure?

 

Hi leedoe

 

You should copy in the Pursuer (or their sols) with all documents as well as the court. The only exception is during the adjustments of the writ and defence where this is done between the disputing parties. The Pursuer then provides a copy of the final record which contains the adjustments and allows the Sheriff to focus on the substantive issues still outstanding.

 

It seems odd at first but makes sense in practice.

[leedoe]

Sent adjustments to sols and handed a copy into court i await their reply

[seriously fed up]

OK good man.

Lets wait and see how they respond

[IdaInFife]

OK good man.

Lets wait and see how they respond

 

 

How do you know they are male

[seriously fed up]

got it from one of the forms that HE put up.

[IdaInFife]

smart cookie

[seriously fed up]

word file on page 3 - he ticked Mr (column 3), so unless he's a very odd Mr (but we are wide and all inclusive group) has to be male!

Or that's what my mother used to tell me!

[leedoe]

Hi all received adjustment back from sols, seems very quick only gave them my adjustments on thursday .I will post up their reply they cite "Carey v HSBC" and they have got the correct account name but nothing else new in their reply they haven't addressed default or possible not signing of the agreement

[leedoe]

 

 

[/attach][/attach]

[leedoe]

 

 

[leedoe]

I hope you can read these docs i'm not to clever on a computer

[leedoe]

[leedoe]

Any advice welcome

[Coactum]

OK Leedoe I’ve rather lost the place with your case so to save time let me try and cut this down to the basics. The pursuers case is that you borrowed money and that they have statements proving the movement of those borrowed funds but they lack the original agreement as signed by you but are relying upon using a recreated document for this case. Your defence is that the absence of a signed agreement, the pre paid PPI and their failure to issue a valid default notice all call into question the competency of this action. Is that about it?

[seriously fed up]

Its interesting that they have gone for Carey v HSBC (copy here Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)). This is actually quite a complex judgement as its being portrayed by lenders as saying that if they send out a reconstitution then that's fine and the account is enforceable. In that respect Waksman's concluding paragraphs are interesting. He says there

Begins

 

1. The following is a brief summary of the principal findings and conclusions set out above:
   (1) A creditor can satisfy its duty
   under s78
   by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2)
   The s78
   copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not,
   in complying with s78
   , provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been
   a breach of s78
   . Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (8) The claims that there was an unfair relationship and an IEA in
   Adris
   should be struck out or dismissed. The claim that there was an IEA in
   Yunis
   should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.
   
   

   
   

ENDS

The particularly interesting thing here is the persistent reference to s78 (the emphases in the text are mine btw). One of the issues between the parties in this case was the issue of whether a s78 request (where's the agreement?) was about information or proof - which are referred to in the judgement as the information purpose and the proof purpose (see para 44).

What it seems to me RBS are trying on here is to argue that they have fufilled their obligations under s78 by providing a reconstitution - it has to be said they are probably right (I dont know if its worth pointing out to the Sheriff - who will be even more aware of this than you or I - that Carey was heard in the English High Court and thus might be influential but is not authoritative in a Scottish court - if you do point this out dont forget to smile modestly at this point). Then, it looks to me as if they are using accounts/ statements etc to show the money was borrowed and that there was some repayment.

HOWEVER - and the problem here is that Waksman was anything but clear on this - what you need to argue is that while, yes, they have fulfilled their s78 obligations, they have not produced evidence which will satisfy their s61 oblgation - in particular a document containing the prescribed terms on it that you have SIGNED. You need to develop this by pointing out that this is not about whether or not lending took place, but whether in terms of the requirements of the CCA the pursuers are capable of asking the court to enforce. Your argument will be that s61 requires a signed document containing the prescribed terms and if they cannot do so then the account can be enforced only by order of a court. However as they are in breach of s61 (1)(a) the court is specifically prohibited from issuing such an order by virtue of s127 (3) which applies to this account as it was entered into before 2006 and its repeal by the CCA of that year.

However, as I said, Waksman was not all that clear. For one thing he quotes Langan (the Mitchell case) as saying that a reconstitution would be ok if the original had been lost in a fire (para 53 (6)). I think what this points to is for you to poke them about why they cannot come up with the original. I mean its not as if we are talking here about a wee corner shop - this is a multi million pound business with people getting paid a good screw for looking after records like this. Or just ask them "when was the fire?". But the important thing, I would suggest, is not to be distracted by the argument they are developing, which if I read it right will be something like

 

1. he got the money - here is a reconstructed agreement
   
2. he spent the money
   
3. he paid some of it back - here are the account statements
   
4. he hasnt paid it all back, so please issue an order
   

You argument has to focus on their non-compliance with s61 - where is the signed agreement that you need to enforce this account? Oh, you dont have it, so only the court can make an order. Sorry Sheriff, but s127 (3) prevents you from issuing an order.

Put short, they are going to say you got the money and spent it, please pay it back. You need to say that they dont have the documentation required under the CCA for the court to make such an order, however the Sheriff might feel about it (and dont assume he wont adopt a "moral" stance - there are cases in England that have been lost because the Judge took the view that RBS are putting up here, no matter how at odds it might be with the requirements of statutory law).

One other thing, goes back to para 4 of Waksman's conclusion that if an agreement has been varied at all - any term or condition - then the must provide a paper trail all the way from the current t&cs back to the originals. I think I am right in saying that they havent done this. One problem for you in quoting this goes back to the observation that Carey was an English case and thus not authoritative. You might say well if they want to use part of the judgement they will need to take it all, but lawyers are great cherry pickers. If this doesnt suit them they may well come up with chapter and verse why this kind of paper chase would not be compatible with Scottish law, though the part of the judgement they want to use IS compatible.

Leedoe have you put up a copy of your current defence - I think that would be helpful

Edited February 15, 2010 by seriously fed up
to ask for copy of defence

[seriously fed up]

Leedoe, you MIGHT find this interesting - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-76.html at post 1501

Its an English case - and it is being appealed by Barclaycard - but the important issue is in paragraph 20 which reads " It is my judgement that, considering the jurisdiction first, the disclosure sought would dispose fairly of the anticipated proceedings in that if the document does exist and is in compliance with section 61 there will probably be no proceedings; the Claimant will abandon the case. If the document t does not exist and never did or if it clearly does not comply with section 61, there will probably be no proceedings because the bank will concede the point and if there is a dispute about it then it will be disclosable in the proceedings anyway."

I think from this its pretty clear that if a lender doesnt have a s61 compliant document, then they are screwed.

[seriously fed up]

The following is also germane to your argument, I think

a. Wilson v. Hurstanger [2007] EWCA Civ 299

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

ii. Objective of the Consumer Credit (Agreements) Regulation 1983 Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included and above all that they cannot be in the slightest misstated.

 

b. Wilson v First County Trust Ltd [2001] EWCA Civ 633

c. Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the debtor should net a windfall gain ‘pour encourager les autres’

iii. The provisions of the CCA74 cannot be sidestepped either in equity or through the European Convention on Human Rights

 

Also this - which is taken from another thread ( http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-d-judge-made-wrong-20.html) - you'll owe mydogsawestie a couple of pints for this leedoe :grin: - is a good expressions of the argument.

The Consumer Credit Agreement

 

 

a. Did the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 (as amended) and relevant subsequent Regulations in that it stated all the prescribed terms correctly ?

 

No

 

The prescribed terms referred to in Section 61 of the Consumer Credit Act 1974 are contained in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

 

If the agreement does not contain these terms or they are incorrectly stated then it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and in respect to the prescribed terms the court is barred from making an enforcement order by operation of S.127 (3) of the Consumer Credit Act 1974. Note: s127(3) is still in force for agreements commenced before 6th April 2007.

 

 

The authorities cited make it plain that their Lordships are explicit on the subject of incorrect prescribed terms and how if incorrectly stated the agreement is unenforceable.

 

 

Wilson v. Hurstanger [2007] EWCA Civ 299 at para 11 LORD JUSTICE TUCKEY agreed with the first instance judge who said in respect of the prescribed terms [Note bold italics is the Appellant's emphasis of the quoted text] :-

 

"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 schedule 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 section 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."

I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2))."

Wilson v First County Trust Ltd [2001] EWCA Civ 633 at para 26

 

"...The creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;" - SIR ANDREW MORRIT - VICE CHANCELLOR

 

Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 at paras 4 & 71 confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At para 49 LORD NICHOLLS OF BIRKENHEAD also stated:

 

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. ....when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear. "

 

Persuasive argument is also provided by Francis Bennion the original draftsman of the Consumer Credit Act 1974 in his statement:-

 

“Consumer Credit Act 1974 s 127(3)

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed. 167 Justice of the Peace (2003) 773.”

 

Although the above article by Francis Bennion discusses the “amount of credit”, Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 also defines “repayments” and “amounts of repayments” as also being prescribed terms and therefore subject to the same restrictions by virtue of S127(3) CCA 1974.

 

TO SUMMARISE:

 

In addition to the copy of the Credit Card Application form filed by the Respondent at Summary Judgment in their Exhibit “MBNA2”, the Respondent filed a separate A4 sheet of T & C’s from 2008. There are certain prescribed terms within this latter document, however this document does not appear to be linked to the Application Form. In addition the Appellant submits that this separate sheet does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983 / 1553) and the Consumer Credit Act 1974 (The Act) because the prescribed terms must be contained within the Agreement and they cannot be found in a secondary document headed 'Terms and Conditions' or in this case “Conditions”.

Hope this helps

SFU

[Coactum]

Thanks for the excellent posts seriously_fed_up, you have certainly helped me grasp what this case is all about.

 

I wonder though what the law makers were thinking about when they referred to a reconstituted document. I had always thought this was a photocopy or a scan not a freshly typed document that any old Tom, Dick or Harry completes. How on earth could such a reconstitution be valid. Anyone could type up anything and claim it was a reconstitution. Surely that cannot be right?

[leedoe]

Thanks coactum and SFU my defence is basically what i put up as a draft and i added SFU,s points in the plea in law.Interesting in their response they question my candour regarding the overdraft, when they never had the name of the account correct.Should i respond to them or just wait for the options hearing,last day for adjustments is Friday the 19th

[seriously fed up]

good, glad you found my ramblings helpful.

Re reconstitution. for the source of this you need to go back 40 or 50 (or more) years to the "time before photocopiers". There is a good explanation of from someone else somewhere on here, but basically before there were computers, a debtor might say to a lender can you do me a copy of our agreement, so lender's clerk sits down and writes out a copy. It wouldnt necessarily look like the original - which might have been done by another clerk for instance - but it should say the same things (or mean the same at the very least). Now the point is we do have photocopiers, but they still cling to this nonsense. Waksman stuck to it in the Carey case, but given that there are photocopiers practically everywhere (everyone with a scanner has a photocopier in effect) the rationale that existed doesnt any more.

The issue is, I think that claims companies were using s77/78 to argue that if the lender couldnt produce the agreement IMMEDIATELY then the account should be declared unenforceable.But if you look at s77/78 it was only ever intended primarily to be for the purposes of information and not to do with enforcement in the strong legal sense. What they - the claims companies - have done is to muddy the waters so that if a lender comes up with a "reconstruction" is this enforceable in the wider s61 aspect (the proof purpose)? Why would they do that? Because they want a sure win, an easy win and a quick win. To allow an account to go into the land of the living dead that we know as unenforceability isnt something that they wanted. They wanted to deal with cases quickly, take their cut and move on. Well with Manchester, I fear they may have made life a bit more difficult for us all.

Here endeth the rant.

Edited February 15, 2010 by seriously fed up

[seriously fed up]

What I have done here is to copy your defence and makes some observations (in red) therein. I hope they help

HERIFFDOM OF BLAH BLAH

 

DEFENCE AS ADJUSTED 2ND FEBRUARY 2010

in the causa

 

the bank

against

me

 

1. ADMITTED

 

2.The pursuer states that "the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxxxxxx

This is admitted

The pursuer states that "as at 10th november 2008 has drawn on the said account to the extent £xxxxxxxx which is the sum sued for in crave one. The said sum is repayable on demand"

This is denied. You might want to clarify, when it gets to your turn that what you are denying is that the sum is repayable on demand because of the faults with the default notice and not that you obtained the loan facilities?

It is explained that this agreement is regulated by the consumer credit act 1974. The pursuers have failed to send the defenders a default notice which they are required to do under section 87/88 of the cca 1974, since they have not complied with this they are not entitled to demand payment.

The pursuers claim to have produced a "copy of the loan agreement entered into by the defenders ".

It is explained that the pursuers have produced a reconstruction of an agreement, since this document does not have the defenders signatures on it, it cannot be claimed to be their agreement – they will claim it is the agreement – your come back is “OK where is the documentary proof required to enforce this under the CCA?” – this is important as their case is likely to be (and I haven’t been listening at doorways, honest!) here is a reconstruction, here are the statements, can we get our money back – your case is that they don't have the documentary evidence to allow the court to make such an order – you need to be careful here to be firm with the sheriff to keep his eye on the CCA (the “ball”) and not his own morality but at the same time not offend him - keep the focus on their lack of documentary evidence needed for enforcement - this might not be easy as its not the focus they will want to maintain - and as such under section 61(1) this agreement has not been properly executed. Since it has not been properly executed this brings us to section 65(1) of the act which states "an improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only" and since this agreement is regulated by the cca 1974 then section 127(3) applies it states "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 the hirer (whether or not in the prescribed manner). This is all fine

It is explained that at the time of applying for the loan the pursuers added ppi to the loan.The defenders at the time stated they did not require ppi only to be told "they would not get the loan unless they took ppi.The defenders asked if the ppi was cancellable but do not recall what answer was given, so they felt they had no choice but to accept the ppi.The defenders sent a letter to the bank complaining about the mis-selling of the ppi and the bank canceled the policy but refused to refund what had already been paid. The defenders do not recall signing the agreement, contrary to section61(1)(a) they will allege that if you didn’t sign you wouldn't have got the money – your response can be, “ok, prove it? Where is the document?” - nor where they given a copy of the agreement at the time of "signing" or within 7 days of signing contrary to section 63(1)(2) of the cca 1974.There is case law to support this and i refer the pursuers to the judgement of TUCKEY LJ in the case of Wilson +1 v Hurstanger Ltd(2007)EWCA Civ 299. Go along with a few quotes written down in case the old memory fails – I know mine would in these circumstances

It is explained that the defenders have twice tried to obtain documents regarding this case by way of a subject access request (both letters and replies supplied and lodged in process) both requests have been refused by the pursuers citing "data protection" though they are happy to produce several years worth of bank statements without much concern for data protection Coactum is right – this doesn’t add anything

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

It is explained the defenders have never had an advantage gold account numbered xxxxxxxx.

The pursuer states "that at 10th November 2008 has drawn on the account to the extent of£xxxxx which is the sum sued for in crave two the said sum is repayable on demand".

This is denied.

It is explained that the defenders have never had an advantage gold account then the said sum cannot be repayable on demand.The pursuer avers that they produced a copy of the application form for the said account and claimed the second named defender opened the account on or around June 1995. The pursuers documents are almost illegible, the first document appears to be an application form with a date of 24 September 2002 on it,since the pursuer avers this is an application form from 1995 (and it clearly is not)then it should not be admitted into probateThe other three documents are almost ineligible and appear to have no relevance in this case and as such should not be admitted into probate.The pursuers also state the account was transfered into joint names on or around 21 February,they have not provided any documents to prove this happened. This is the “credit card” application ?

4.

Denied

 

 

PLEA IN LAW

 

1.

The pursuers have failed to comply with the following sections of the consumer credit act 1974 . 77(1), 87/88, 65(1),61(1), 61(1)(a), 60(1).

Accordingly this alleged debt is unenforceable under section 127(3) of the same act.The defenders crave that the court uses its powers under section 142 of the consumer credit act 1974 to dismiss this action as un enforceable.

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

3.The defenders deny the sums being claimed as due an the resting owing decree should not be granted as craved.

In respect whereof.

 

 

Btw, a solicitor criticising anyone for "lack of candour" is a wonderful illustration that satire is still alive and well! :D:roll: