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

[seriously fed up]

Think the thing to do is to go through Leedoe's case, identify any parallels and connections and use them. Obviously somewhere in his case was the poison pill(s) that made them back off to the extent that today never really happened.

 

I hope it's that easy for me with my mums !!

 

Nice result although from a selfish point of view i was looking forward to an explanation of how a debate is handled !!

 

Have a nice celebration tipple

 

M1

[Monty2007]

Excellent news Leedoe! Well done.

I really doubt if they will raise a new case, especially that they know you will fight back.... and some!

 

I am really pleased for you. I was hours from a legal debate, yours went slightly closer................

[Coactum]

If it is any consolation Leedoe I had a similar outcome a few months back. HBOS Solicitors played a tough game to get me to submit my costs using a judicial expense format in the end I used a solicitor to resolve that part and they paid up on the last day, so, in the end my case was dismissed rather than the absolvitor outcome I had hoped for.

 

HBOS almost immediately recommenced recovery action but I politely reminded them that their grounds of abandonment of the first action was down to a flawed default notice and that they could not therefore recommence action. All has gone silent since. I hope that the same happens for you.

[seriously fed up]

What Coactum points to is a risk Leedoe - its why I was so clear about advising to seek absolvitor if at all possible. BUT, if they do come back to it with basically the same "evidence", I would make noises to their sols about abuse of process and bringing this to the attention of the court.

I would think the likelihood of them coming up with something new in the near future arent great - if they had something new they would have put it in by the hearing. And if its not new its not going to win.

[leedoe]

Thanks again for the info,

my claim for expenses has been emailed today,

 

i was advised by the sheriff to instruct a legal accountant to do this as it is quite specialised ,

the sheriff clerk gave me the number of a company so they are now dealing with it.

 

As a party litigant we are entitled to two thirds of what a sol would get so it was a nice surprise to be told what to expect(about 2k he reckons)

I'm sure that will please the bank:D:D:D

 

Also there will be a donation coming cags way and once again many thanks to all who helped.

 

To the people starting out their fight keep the faith and it can be done!!!

[mystery1]

Awesome. Did you claim for a donation to Cag out of interest because i'd like to try if i beat the Clydesdale and since you had expert help you might know

 

Cheers M1

[leedoe]

the expenses are set out in legislation so what you claim is sort of set by it,, you get x amount for doing adjustments and a set amount for going to an options hearing, so every time you respond or participate in your case there will be a charge for it,but as i was told it is a specialised field and you will hopefully be going to a professional to do it for you in your case

[seriously fed up]

Just as a point of interest, can you claim for the services of the legal accountant, who wont be working for nothing I would think?

 

[mystery1]

I found this after reading that reply.

 

Ordinary Cause: Table of Solicitors fees chargeable

 

M1

[leedoe]

Yes his fee is added to the total bill

[Coactum]

It is UP TO "As a party litigant we are entitled to two thirds of what a sol would get" and so not necessarily 2/3rds.

 

No doubt you have been advised that there are two ways to claim, a scale fee and item by item. I went don’t the item by item route and got it up to about £1100, HBOS solicitors kept rejecting stating it was not a judicial account and as the recall was nearing I feared they would simply seek dismissal, so, I got a solicitor involved. He added a few more costs and submitted to the HBOS sols. They highlighted that it was Up To “/3rds and that they would oppose my detailed costs but offered £850 which my sol recommended I accept.

 

The Solicitors fee was £350 plus vat so I got £438.75 back and had incurred outlays of £160 so had something for my trouble. I hope that you have a better outcome and get the full £2K you expect.

[seriously fed up]

You cant whack lawyers for putting up their own bill and knocking down yours.

One thing that occurs Coactum is that the way you tell this it almost seems as if the O need to agree your costs - "HBOS solicitors kept rejecting stating it was not a judicial account". What would have happened if you had said - especially with advice from a sol. (or a legal accountant which Leedoe has used) - if you had said "sod that, and hung out to take your costs to court"? Would the Sheriff not have had to come to a decision? Put another way, yes they could oppose your costs, but properly advised you might have won?

Just another form of legal bullying? Perhaps the reason why the Sheriff gave Leedoe the advice that he did to use a legal accountant?

Also not clear why - even if your costs were reduced - this would have led to dismissal rather than (I would guess) absolvitor (which i would have thought your preference)?

[mystery1]

At the risk of appearing nosey i would have calculated your minimum costs as per the above link as (i'm sure there are extras but i'm not rereading whole thread just now):-

 

Notice to defend £80

1 Instruction –

(a) To cover all work from commencement to the lodging of defences including copyings £418.64

 

3 Productions

(a) For lodging productions – each inventory £45.70

(b) For considering opponents productions – each inventory £22.73

 

4 Adjustment - To cover all work (except as otherwise specially provided for) in connection with the adjustment of the record, including making up and lodging certified copy record

(a) Agent for any party £190.66

 

6. Options Hearing

(a) Where initial hearing does not exceed one half hour £152.43

 

7. Additional Procedure - for all work subsequent to Options Hearing including preparation for and attendance at procedural hearing

(a) where hearing does not exceed one half hour £151.57

 

21. Final procedure

 

(b) Fee to cover drawing account of expenses, arranging, intimating and attending diet of taxation and obtaining approval of auditor’s report and where necessary, ordering, procuring and examining extract decree or adjusting account with opponent £99.17

 

 

I make that £1160.90 not including any extras like defending motions minutes of amendment etc.

 

As someone who is ahead of me in the process i'd like your thoughts on that.

 

Cheers M1

[leedoe]

http://i716.photobucket.com/albums/ww162/fifilee123/defaultletter001.jpg

 

http://i716.photobucket.com/albums/ww162/fifilee123/df1001.jpg

 

http://i716.photobucket.com/albums/ww162/fifilee123/default1001.jpg?t=1274881140

 

Received this from the bank today ,half expecting it any thoughts about my next move

 

I was advised by the law accountant to do it by the fixed scale fees as it is less messy as the item by item scale, they can't really argue over costs as they are down in black and white also his fee for doing it is about £170.

[seriously fed up]

Sorry leedoe, but they have always had it in their power to file a default notice. This is the result of the McGuffick case (other side was, guess who? Yes RBS, so they would know about it). What you have achieved is to show that they dont have the documents to achieve legal enforcement, but McGuffick made pretty clear that this does not mean the debt ceases to exist and also that the creditor could continue to seek to enforce. That's how it is.

HOWEVER, should they return to court, I would bring to their attention (and the court's attention)

 

1. the outcome of their last attempt and that
   
2. unless they have something new to put up (I would have thought after this passage of time unlikely) that you will be looking not only to have the court make an order of absolvitor, but to explore what might be done about their clear abuse of legal process. For sure they have a right to bring a case against you to recover whatever money you owe them, but you have recently shown that they cannot achieve by means of a court order, so reverting to this seems little better than persecution.
   

Just a thought. You seemed to be reckoning on about £2k in costs, and since you have had this done by a legal accountant it would seem to me to be more difficult for RBS (or their solicitors) to challenge this (taking on board what M1 had to say). I think they were suggesting prior to the last court appearance that "you pay us £3k in f&f". Might it be worth suggesting that you would write off your costs claim as a f&f? On the one hand they might see this as weakness (you might want to go back and suggest half your costs in the first instance), but on the other hand, you havent got the £2k so its not like you are going to miss it (or not as much as if you had got it already).

You must be fizzing mad about this. But that is the kind of people that you are dealing with and its what this is like. Its often like a war of attrition. I dont know if you have seen the sketch of the guy using a mallet to flatten out mole hills in his garden - flattens one lump and another pops up behind him. Sometimes I feel like that. You get rid of one lot, and then another lot pop up. So you get rid of them and then its the first lot again. I have just had a letter asking me when I am going to pay when I wrote them in September telling them I wasnt and in detail why not. Heard nothing for months so thought they had gtf, and up they pop last week. Its not easy:mad:

[leedoe]

Just checked my credit report RBS have defaulted me on 31/10/08 regarding the loan and the overdraft is showing nothing adverse on the report with a zero opening and closing balance:confused:

 

I think they abandoned because of their lack of a default notice so now they are trying to remedy that by issuing this one ,but since they have previously defaulted me then would i be right in thinking they can now never re-issue one?

[seriously fed up]

Not exactly sure Leedoe - its one of the areas i have tended not to venture. Perhaps a PM to Ida - think she knows a bit about this, but if not then I am sure she knows someone who will.

For the little its worth, I am pretty sure that you are right, and for that reason I would get a record of the notice from your credit file just in case they try to remove it.

This could be an interesting one as usually its one of us saying "but you havent sent a default notice" - and here's you saying that they have. If it wasnt so important there might be a funny side:eek:

[leedoe]

Just printed it off.Also they have only sent me a default and not a joint one(maybe if they give up again it gives them another chance at the wife!)either that or hers will come tomorrow.I'm pretty sure i read it somewhere that an invalid DN cannot be rectified by sending another,and since they can,t find the first one then i can never check it to see if it was valid

[seriously fed up]

not sure they can do that.

Though as you say maybe your wife's will be along tomorrow, but I would have thought it would need to be addressed to both.

 

I think you are right about the consequences of a defective dn - if they issue a defective dn and then, for instance, try to claim all the funds back then they are into unlawful recission.

 

If it were me involved in this - phew - I would be looking into this pretty hard.

 

One place to start might be Claiming damages for wrongful default - note especially the case of Durkin v DSG Retail Ltd and HFC Bank PLC which was heard in Aberdeen so would have significant influence where you are.

 

 

But you really need one of the big hitters on this kind of thing - names that occur are Vint, Banker Rhymes with, and Paul Walton.

 

But no me! Not really my thing.

[IdaInFife]

Dn's for overdrafts are a different ball game to the normal ones.

 

There is a thread that delas with it.

 

I'll go an try and retrieve it

 

ida x

 

from post 37

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/217605-halifax-current-account-defective-2.html

 

ida x

[seriously fed up]

That will be helpful Ida, but if you look at the letters you will see that the one that REALLY matters is the loan - £14k compared to about £2.5 - so while any assistance that we can give re the overdraft (and its a very apt point, remembering George! ), the loan is relatively much more important. Wasnt it a loan and wasnt it RBS that Paul W had to deal with?

[leedoe]

Hi all i asked Banker-Rhymes too have a look and he has confirmed that they can't issue another DN regarding the loan since they have clearly terminated and also they can't issue a DN for the overdraft using the sections they have quoted

[seriously fed up]

OK - that's good - he KNOWS - I dont.

What you need to do know is to get the legal technicalities all lined up for when/if they proceed with further action - ie legislation you would rely on and argument based on this.

I would suggest telling them what your response will be when they issue another of their threatening letters. This MIGHT put them off, and even if it doesnt - it proceeds to court - you can always show the court you told them, making it more likely you would get costs. You are going to have to put all this down in your response to their claim (if they make one) anyway.

[banker_rhymes_with]

Hello Folks!

 

Please don't ever assume what I say is correct, always question everything!

 

The points I was making, were that they cannot issue a Default Notice served under s76(1) and s98(1), because those two Sections are specifically excluded from being used in default situations, by virtue of s76(6) and s98(6).

 

The re-issue of a s87(1) Default Notice will not be valid if they have Terminated the Agreement before the re-issue. From what I gathered from Leedoe, that seemed to be the case

 

But please all check, and see if Termination did take place, and when.

 

HTH

 

Cheers,

BRW

 

Hello Folks!

 

I'd just like to add that this is the danger of seeking help via CAG Private Messages (PM), because others cannot see what is being said.

 

If the advice is wrong, or the person seeking the advice picks up the wrong end of the stick, then others cannot step in to correct or advise.

 

The true power of CAG lies in these open Forums and Threads. Never let the banks force you behind the scenes (unless you yourself have a very good reason), otherwise the banks win, by denying you the FREE support that is available.

 

HTH

 

Cheers,

BRW

Edited May 28, 2010 by banker_rhymes_with
Typo

[seriously fed up]

All perfectly true ( as is that you know more than I do about DNs!)

Take your point about working through PMs, but there are two things:

 

1. given the kind of anarchic way that this site works, its perfectly possible for the person who might give the best advice not to be aware of the thread. PM is one device to address this. But you are right - its better in the open as then someone with the same problem can come along later and learn from it.
   
2. we can only give the best advice that we can. A lawyer can charge £25 for 6 mins and then add VAT and still spout nonsense.
   

Btw Banker HTH? Que?

SFU