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

[leedoe]

This sounds like a job for Rory

[Monty2007]

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

 

If he has not told you he has submitted a Rule 22.1 note or requested an extension to the adjustments (i.e allow the Record to be kept open) then he probably has not done so. Have you given him any instructions? He is acting for you.

 

If I were you, I would draft up a Rule 22.1 note and get in into the Sheriff Court tomorrow.

 

I have no idea what this guy is doing and it sounds like he is just trying to get his legal aid fees, what is his strategy and understanding of the issues? What defence is he planning to use? Does he understand the process in relation to submitting a counter claim?

 

I know from reading the Scottish civil procedure rules that you have to submit a counter claim with your defence and it has to be in the correct sytle and format, the Sheriff will have some leanancy with a party litigant.

 

Is this lawyer actually representing you? Does he know the timeframe?

[Monty2007]

This sounds like a job for Rory

 

I guess so.

[leedoe]

The first time i seen him he seemed to know what he was talking about i left him all the paperwork and he said he would deal with things got a letter a couple of days later saying they were dealing with it then nothing till i walked into his office today with their ammended writ it was sent to me i don,t think their sols even no he is supposedly representing me

[IdaInFife]

i am no good with legal stuff but founf this is someones defence and at the bottom has the bit about signatures if it's any good to you for the loan no.16

 

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

14. 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."

 

15. 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

 

16. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

 

Ida x

[leedoe]

I am going to see him tomorrow, do you have the relevant part of the cca 1974 that states an unsigned agreement is unenforceable and possibly any case law,so i can show him.

[IdaInFife]

missed this bit as well

 

17. The claimant is therefore put to strict proof that such a compliant document exists

 

 

18. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, 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 ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

 

Ida x

[leedoe]

Thanks ida

[leedoe]

Punch away ida

[IdaInFife]

thanks I hope it helps

 

Ida x

[leedoe]

Hi just a quick update was on my way to court with letter Monty had done for me to get an extension when sols phoned, seems he has been reading up on consumer law and now thinks i have a good case and now wants to defend for me, a big change in his attitude from yesterday.So i am now happy to let him carry on with it even though i will be watching closely what he is doing.I will keep everyone informed all the way.Many thanks to Monty for all his work and effort i really appreciate it.

[Monty2007]

Hi just a quick update was on my way to court with letter Monty had done for me to get an extension when sols phoned, seems he has been reading up on consumer law and now thinks i have a good case and now wants to defend for me, a big change in his attitude from yesterday.So i am now happy to let him carry on with it even though i will be watching closely what he is doing.I will keep everyone informed all the way.Many thanks to Monty for all his work and effort i really appreciate it.

 

Thanks Leedoe, you are welcome. Did your solicitor tell you how he was going to defend the action? It sounds like he did not change your defence or pleas-in-law or ask for an extenion/Rule 22.1 note?

 

It would be good to get some detail of how he intends to defend.

[leedoe]

Hi Monty he says he will go to court and ask for the case to be sisted to give him time to get the legal aid application through.He seems happy to go with what he,s got ie no signed agreement.I will keep you informed all the way.

[Monty2007]

Hi Monty he says he will go to court and ask for the case to be sisted to give him time to get the legal aid application through.He seems happy to go with what he,s got ie no signed agreement.I will keep you informed all the way.

 

Hi Leedoe

 

Sounds like a good plan, he shoud be able to have it sisted on the basis of your legal aid application.

[leedoe]

Hi all sorry i haven,t been on in ages i have been waiting on legal aid ,it has been refused so it looks like i will have to defend it myself hopefully with lots of help from everyone out there ,will keep you updated with further developments.

[Crown46]

Surely there is an appeal against a refusal of legal aid?

 

Or maybe it is a review request

 

'If we refuse your application for legal aid you, preferably through your solicitor, can ask us to review that decision. We will do so and tell you and your solicitor our decision within 29 days, or 25 days where it is made online'

 

 

civil service standards 2008

[leedoe]

the decision has been appealed and reviewed and a brand new application for legal aid have all been submitted but they keep refusing it.They seem to think i don,t have a case , so i will try and defend it myself hopefully with help from my fellow caggers

[Crown46]

Good for you, just checking incase it was the solicitor losing interest in the case and not bothering (or not encouraging you) to pursue the legal aid appeals process.

 

I have read your post with interest, having been a law clerk in Northern Ireland (now living in Scotland) and trying to feel my way arround the scottish legal process.

 

Good luck!

[leedoe]

Hi all the cist has been lifted and i go to court next friday, the 29th Jan any advice would be most welcome

[leedoe]

hi can anyone give me some advice regarding what will happen at court on friday, the letter i received from sol states i will be asked wether i intend to proceed with my defences.I would like to get the record opened if thats possible does anyone have any knowledge of this thanks

 

anyone help with this

 

bump

[IdaInFife]

Hi Lee,

 

sorry I don't know but will ask a few to pop along

 

Ida x

[seriously fed up]

Hi Lee, Ida asked me to have a look at this (we must be short staffed ).

I have read through this a couple of times and I must admit to being thoroughly confused - and even worse, more confused than usual.

Like Monty, I have NO expertise where loans are concerned. However, on the basis that while the form of the agreement may differ, the essentials (the prescribed terms) remain the same, I would say that the document in the adjusted writ does look pretty solid. The rate of interest is stated; the amount of credit is stated (I assume - understandably you have made it unreadable) and the repayment schedule is stated. So the prescribed terms are there. However, all is not necessarily lost. There are a couple of things:

 

1. is this the document you signed? Is your sig on this document or is it just a reconstruction? They are allowed to put a reconstruction in, but the problem they will have is showing what the agreement was in detail. They should be able to show lending took place, but what was the "fine print"? However, if your sig is on the document in the writ, it gives you little room to manoeuvre, and I would have thought a court would be minded to enforce this with little difficulty
   
2. I noted from the credit card agreement (its dated 12/1/06 at the top) that you (I assume its you) are employed as a taxi owner/ driver, so you are self employed. There is a fair blast of the money owed in this personal loan- rather more than 1/3 - gone to Loanguard. Some things about this
   

 

• how optional was it? Was it optional? Or was it optional in the sense only that if you didnt take it, you didnt get the loan?
  
• were they aware of your occupation at the time you took out the loan? If not, and just as importantly, did they ask?
  
• if you had become (did become) unemployed, would you have been able to claim on Loanguard, OR - pretty likely - being self employed you wouldnt be able to claim? You will need to check this out for yourself - I really dont know what rules surround Loanguard.
  

But mis-selling looms large in this - as set out above, but also who were the insurers who were taking the risks under Loanguard. Was it RBS, and if it was did they fess up to this. If the beneficiary was RBS and they didnt tell you, then check this out BBC NEWS | Business | Court lets woman off £8,000 loan. OK, its in England and its a credit card, but the same considerations apply. I cant tell you if its relevant - only that it might be. You need to find out. The best you could hope for would be that the loan is set aside - as the credit card debt was in Sunderland - in which case you need to do some serious reading up on that case and in particular the legal pleas made to get the debt set aside on the basis of the mis-sold ppi.

Then we can move on to the credit card. As has been observed on the thread already, the document they have provided for the credit card in the adjusted writ is about as much use as a chocolate fireguard being illegible in most of its parts, and not having a prescribed term in sight. BUT - and this is where my confusion peaks out - on the same post you have posted a word file lee, and I have to say that if THIS is your credit card agreement and IF the bank has a copy of it, then I think that is enforceable as well, since it has the prescribed terms (key financial information - top of column 1) and a signature (yours?) in the middle of column 2.

So to sum up

 

1. if the loan agreement in their amended writ has been signed by you (and isnt a reconstruction) then I dont think it looks awful good. However that said they might well has mis-sold Loanguard, and - this is an outside chance - you might just get the loan set aside. At the very least, I would expect the cost of that to be deducted from what you owed
   
2. re the credit card, it really depends on which document is the one that they will be relying on in court. If its the one in the Word document that looks to me to be pretty kosher. But the one in the amended writ is illegible and (assuming the original is just as bad) thus not enforceable.
   

If you can advise me re these matters, I might be able to offer some more help.

Hope this assists

SFU

[Monty2007]

Hi Leedoe

 

I cannot really add any more that SFU has stated. The agreement must conform to the CCA so attach that first along with any issues with the DN.

[IdaInFife]

thanks you two

 

ida x

[Coactum]

I too was invited to participate by Ida, and have read from beginning to end and like Seriously fed Up I found it a bit confusing, but for different reasons. I had to bob back at one time because I thought the dates were out of sync. This thread begin on 7th January 2009 then when I got to post 50 I thought we time travelled to 11th February 2009; then I remembered we are now in 2010! My doesn’t time fly.

 

I regret to say that upon reviewing what you have shown that this agreement is indeed valid and as such you are going to have some major hurdles to cross. That said being Self Employed there is a strong chance that the protection policy would never have paid out if you had attempted to make a claim. As such it may have been appropriate to place the account into dispute upon realising this and RBS refusing to repay the premiums. Did you ever intimate this to them and if so is this within your defence statement?

 

Why did you stop maintaining the payments? If you are unable to work and earn your usual income them surely that is what the insurance was all about. There may be reason to highlight the ineptitude of the bank in selling you a useless policy, state that upon realising this you asked for a refund which to date has been denied. Had this policy been fit for purpose the premiums would be up to date and this action would have been unnecessary.

 

This is clutching at straws and certainly last minute and possibly too late to adjust your defences but must surely be worthy of consideration

 

Just had another thought. The loan app shows the entire insurance premium as an upfront payment consolidated into the loan, as such even if you cancel the policy then surely the bank still have cover for the duration of the loan. What are the grounds for your non payment. If poor health, unemployment etc., has a claim been made? If so, why did they not pay. If they failed to pay for a claim made for death, sickness, accident or unemployment then surely this strengthens you case for misselling?