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

[Coactum]

Thanks for the explanation relating to reconstruction SFU but for the record it should be noted that the first commercial photocopies was produced in 1956 and indeed was invented some twenty odd years prior to that. Most larger businesses and indeed most legal firms would have had photocopiers by 1974 when the Consumer Credit Act came into being and as such I’ve have thought that the Carey missed an opportunity to ridicule the proposal to use a reconstruction of that type. Probably way too late now though!

[Coactum]

But not too late for Leedoe. The Carey v HSBC case being English, as mentioned earlier, has little bearing here in Scotland. As such if it looks as if matters are going for the pursuers you might want to try and persuade the Sheriff that reconstruction as at 1974 surely cannot be a hand written transcript, furthermore, in the days when monks would painstakingly copy text the essential word was “copy” i.e. there was an original from which a fresh transcript was created. How can the court be certain that what is being presented now as a reconstruction has any bearing to what was actually endorsed by you without comparing this to the original?

[seriously fed up]

Not sure I would necessarily share your view of how the Sheriff will look on Carey, simply by virtue of it being English - I really dont know. On the one hand he might not have heard of it, or at the other be one of the decision's biggest fans. No way of saying. But for sure it carries NO authority at all - but that is not to say that it wont be influential. But I do agree VERY MUCH that Leedoe should query why they are putting up a reconstruction rather than the original. I dont think I would be satisfied with "we cant find it" "its lost" - as I said earlier on this isnt a corner but a multi million (billion?) enterprise with people paid a good screw to ensure that records are kept properly. Also, what does it say about the rules of evidence. Its kind of like you or I have been charged with murder and they come up with not the same body, but a body that is a "true copy".

Re photocopiers you are right, but the concept of "true copy" is a legal tradition (and you know how lawyers love their traditions!). And its also true to say that in 1974 photocopiers were not as ubiquitous as they are now. I agree with you that the concept of "true copy" (and your illustration of a monk copying a text isnt that far aways) is something that should have been picked up on and kicked into touch. But the problem is that the courts were not going to allow s78 to make accounts unenforceable simply because the lender couldnt find the agreement at that point. So, if he cant find it today, there is a need for a holding position - the true copy. The problem is if its allowed to role on - as in this case - to no longer be for "the information purpose", but be promoted to become the "proof purpose". THAT would be very serious.

[leedoe]

Thanks again both of you for the help i really appreciate it, i will leave the adjustments as they are and get my rule 22.1 in next week and see what happens at the options hearing.

[seriously fed up]

OK - let us know how it goes at the options hearing then.

[Coactum]

I thought I'd lighten the mood a little for you Leedoe by telling a tale about the dangers of copying text by hand.

 

A young monk arrives at the monastery. He is assigned to helping the other monks in copying the old canons and laws of the church by hand.

 

He notices, however, that all of the monks are copying from copies, not from the original manuscript.

 

So, the new monk goes to the head abbot to question this, pointing out that if someone made even a small error in the first copy, it would never be picked up! In fact, that error would be continued in all of the subsequent copies.

 

The head monk, says, "We have been copying from the copies for centuries, but you make a good point, my son."

 

He goes down into the dark caves underneath the monastery where the original manuscripts are held as archives in a locked vault that hasn't been opened for hundreds of years.

 

Hours go by and nobody sees the old abbot.

 

So, the young monk gets worried and goes down to look for him. He sees him banging his head against the wall and wailing,

 

"We missed the R! We missed the R! We missed the R!"

 

His forehead is all bloody and bruised and he is crying uncontrollably. The young monk asks the old abbot, "What's wrong, father?"

With a choking voice, the old abbot replies, "The word was, CELEBRATE!"

[IdaInFife]

[leedoe]

:d:d:d:d

[leedoe]

:D:D:D:D:D:D:D

[leedoe]

SHERRIFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

SUPPLEMENTARY NOTE OF THE BASIS OF PRELIMINARY PLEA

In the cause

THE ROYAL BANK OF SCOTLAND PLC,36 St Andrews Square Edinburgh EH2 2YB

Pursuers

Against

 

FIRST NAMED DEFENDER

And

 

SECOND NAMED DEFENDER

 

The defenders wish to insist upon their preliminary pleas numbered 1,2 and 3 for the following reasons: as stated in condescendence 2 the pursuers have failed to produce a valid default notice or an enforceable credit agreement also the pursuers mis-sold ppi and at the time of signing this alleged agreement the defenders were not given a copy nor received it within the required 7 days also as the defenders do not recall signing the purported agreement the pursuers have not shown that such a compliant agreement exists. In condescendence 3 the pursuers aver that they have produced an account application dated 22nd June 1995, this is lacking in candour as it is clearly dated 24th September 2002 and also the documents produced are barely legible. For these reasons the pursuer’s averments should not be admitted to probation as they are wholly inconsistent and lack candour.

In all the circumstances the Defenders wish to insist upon their preliminary pleas.

IN RESPECT WHEREOF

 

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

26th February 2010

[leedoe]

Hi all this is my proposed rule 22 note any advice, comments most welcome

[Coactum]

I know the legal profession are famed for their long sentences but I don't think you need to mimic them. The sentence is long with a number of also's where a new sentence could be taken.

 

I'm not trying to give an English lesson here, I'm merely suggesting that some re-punctuation will make you statement better understood. Might I suggest the following:

 

The defenders wish to insist upon their preliminary pleas numbered 1,2 and 3 for the following reasons:

As stated in condescendence 2 the pursuers have failed to produce a valid default notice or an enforceable credit agreement.

The pursuers mis-sold Payment Protection Insurance (ppi) and at the time of signing this alleged agreement the defenders were not given a copy of said ppi nor received it within the legally required 7 days.

The defenders do not recall signing the purported agreement.

The pursuers have not shown that any compliant agreement exists.

In condescendence 3 the pursuers aver that they have produced an account application dated 22nd June 1995. This is lacking in candour as it is clearly dated 24th September 2002. Furthermore, the documents produced are barely legible.

For these reasons the pursuer’s averments should not be admitted to probation as they are wholly inconsistent and dishonest.

In all the circumstances the Defenders wish to insist upon their preliminary pleas.

[seriously fed up]

notwithstanding what was in my pm leedoe, I would agree with Coactum very much on the importance of presentation. Coactum's suggestion is one way of doing this, using bullet points is another. I took the liberty of copying your document into Word to do this:

The defenders wish to insist upon their preliminary pleas numbered 1,2 and 3 for the following reasons:

1. as stated in condescendence 2

1.1. the pursuers have failed to produce a valid default notice or an enforceable credit agreement in terms of the Consumer Credit Act 1974 (put the relevant section in here - also in what respects is the notice defective and the agreement not enforceable - might it be better to make this TWO points, because you are making two points here? )

1.2. at the time of signing this alleged agreement the defenders were not given a copy nor received such within the 7 days required by the Consumer Credit Act 1974 (put the relevant section in here)

1.3. the defenders do not recall signing the purported agreement the pursuers have not shown that such a compliant agreement exists (don't really follow this one – how does “I don't remember signing this” lead to the conclusion that no compliant agreement exists. It may be correct, but there is no necessary connection – for instance you might have forgotten! Or is this just a conclusion – “therefore no compliant agreement exists

1.4. the pursuers have mis-sold ppi (I think you really do need to say how and why it has been mis-sold, even if just in summary)

2. In condescendence 3

2.1. the pursuers aver that they have produced an account application dated 22nd June 1995, this is lacking in candour as it is clearly dated 24th September 2002

2.2. the documents produced are barely legible.

For these reasons the pursuer’s averments should not be admitted to probation as they are wholly inconsistent and lack candour. In all the circumstances the Defenders wish to insist upon their preliminary pleas.

Basically, I think what I am suggesting are two things

 

1. use bullets as set out above
   
2. give justifications - even if brief ones - for instance, why in terms of law is the agreement not enforceable in your view? why has the ppi been mis-sold by the bank? Your defence makes these points at length - just reprise this gently and briefly here.
   

BTw, just thought about this what happened to condescendence 3?

[leedoe]

point taken both of you will re-do it now

[leedoe]

SUPPLEMENTARY NOTE OF THE BASIS OF PRELIMINARY PLEA

In the cause

THE ROYAL BANK OF SCOTLAND PLC,36 St Andrews Square Edinburgh EH2 2YB

Pursuers

Against

FIRST NAMED DEFENDER

And

SECOND NAMED DEFENDER

The defenders wish to insist upon their preliminary pleas numbered 1,2 and 3 for the following reasons:

As stated in condescendence 2 the pursuers have failed to produce a valid default notice or an enforceable credit agreement

The pursuers mis-sold ppi

At the time of signing this alleged agreement the defenders were not given a copy nor received it within the required 7 days

The defenders do not recall signing the purported agreement and the pursuers have not shown that such a compliant agreement exists.

In condescendence 3 the pursuers aver that they have produced an account application dated 22nd June 1995. This is lacking in candour as it is clearly dated 24th September 2002, more so the documents produced are barely legible.

For these reasons the pursuer’s averments should not be admitted to probation as they are wholly inconsistent and lack candour.

In all the circumstances the Defenders wish to insist upon their preliminary pleas.

IN RESPECT WHEREOF

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

26th February 2010

[leedoe]

how is this ? i take your point with the bullets SFU but i want to keep it in a similar style to theirs so they can,t get it thrown out like Georges.Thanks to both of you for the help greatly appreciated

[leedoe]

in the causa

 

10The Royal Bank of Scotland plc,36 St Andrew Square,Edinburgh EH2 2YB

Pursuers

against

First Named Defender

and

 

 

Second Named Defender

　

　

　

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 xxxxxx

This is admitted

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

This is denied.

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 reconsrtuction of an agreement,since this document does not have the defenders signatures on it, it cannot be claimed to be their agreement 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).

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), 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.

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.

3.

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

This is denied

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

The pursuer states "that at 10th November 2008 has drawn on the account to the extent of £xxxxxxx 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 probate. The other three documents are almost illegible 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.

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)63(1)(2),,61(1), 61(1)(a),60(1),as there is no signed agreement the pursuers are in breach of section 61(1)(a) and therefore the account can only be enforced by order of the court ,section 65(1) however section 127(3) specifically prevents the court from making an enforcement order under section 65(1) and therefore the defender craves the court to dismiss the pursuers application and for the court to use its powers under section 142 of the same act to declare the purported agreement unenforceable.

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

　

　

Edited February 25, 2010 by leedoe
name visible

[leedoe]

this is my adjusted defence meant to put it up earlier

[seriously fed up]

OK, will try to have a look tonight/ tomorrow. But came across this http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-80.html#post2794306 - see 1599 - which, I think is an important consideration for you, especially as THEY mentioned Carey. Have a look.

[Monty2007]

SHERRIFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

SUPPLEMENTARY NOTE OF THE BASIS OF PRELIMINARY PLEA

In the cause

THE ROYAL BANK OF SCOTLAND PLC,36 St Andrews Square Edinburgh EH2 2YB

Pursuers

Against

 

FIRST NAMED DEFENDER

And

 

SECOND NAMED DEFENDER

 

The defenders wish to insist upon their preliminary pleas numbered 1,2 and 3 for the following reasons: as stated in condescendence 2 the pursuers have failed to produce a valid default notice or an enforceable credit agreement also the pursuers mis-sold ppi and at the time of signing this alleged agreement the defenders were not given a copy nor received it within the required 7 days also as the defenders do not recall signing the purported agreement the pursuers have not shown that such a compliant agreement exists. In condescendence 3 the pursuers aver that they have produced an account application dated 22nd June 1995, this is lacking in candour as it is clearly dated 24th September 2002 and also the documents produced are barely legible. For these reasons the pursuer’s averments should not be admitted to probation as they are wholly inconsistent and lack candour.

In all the circumstances the Defenders wish to insist upon their preliminary pleas.

IN RESPECT WHEREOF

 

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

26th February 2010

 

Looks good to me.

[Monty2007]

Leedoe

 

I can't remember if I mentioned it but do ensure that you provide the court with a List of Statues that contains a complete copy of the CCA, SI's that you use, cases etc. You will also need to provide a copy of this to the Pursuers. The Sheriff made efforts to tell me that he needed the complete CCA (its big - but I was not going to argue with him). I provided a CD copy for the Pursuers.

[seriously fed up]

Wouldnt disagree with Monty, particularly on this as he knows about procedure.

Would agree with him VERY much about taking every single bit of law that you MIGHT rely on along with you in written form. It would be wrong to assume that the Sheriff will always know - he might need a bit of help from time to time. Even if you have to deforest half of Brazil and buy a new printer it will be worth it. And take a copy for yourself. Some people even take a third copy so that it if the other side dont have a copy you can appear to be helpful (this is often used when there is something that the other side wish wasnt there and wouldnt come up).

And yes, there are known cases of people developing hernias as a result :lol:.

[leedoe]

Leedoe

 

I can't remember if I mentioned it but do ensure that you provide the court with a List of Statues that contains a complete copy of the CCA, SI's that you use, cases etc. You will also need to provide a copy of this to the Pursuers. The Sheriff made efforts to tell me that he needed the complete CCA (its big - but I was not going to argue with him). I provided a CD copy for the Pursuers.

 

 

do i need this for the options hearing?

[leedoe]

Handed my rule22.1 note in on monday clerk nearly gave me a heart attack said it was late and i would have to ask the judge for permission to lodge it:confused: explained it wasn,t an adjustment but a rule 22.1 he then said it was fine

[seriously fed up]

do i need this for the options hearing?

 

I think its probably an idea to go in "tooled up" just to show them that you are serious, have researched what you are going to say and give them a run for their money. But that's a purely personal view.