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

[leedoe]

This is the statutes and cases i was thinking of using please correct me and add to them .

1.The Consumer Credit Act 1974

2.SI 1983/1569:Consumer Credit (Prescribed Periods For Giving Information )Regulations 1983

3.SI 2004/3237 Consumer Credit (Enforcement Default And Termination Notices)(Amendment) Regulations 2004

4.Wilson &ANR v Hurstanger Ltd -[2007] EWCA Civ 299

5.Wilson &ANR V Secretary of State for Trade and Industry- [2003] UKHL 40

6. Woodchester Lease Management Services Ltd v Swain & Co. [1998] All ER (D)339

7.Kpohraror v Woolwich Building Society-[1996] 4 All ER 119

8.Francis Bennion Quotation

[seriously fed up]

Thanks for advice SFU but it is not well done me it is well done to you guys on CAG oops and gals .I haven't heard a thing from sols so i will have to carry on as though i will be going to debate on the 17th.

Absolutely dont drop your guard. But hey there is still a fortnight. This court hearing wont start till it starts - ie dont be surprised if they arent there, or seek dismissal from the sheriff.

Cases, looks fairly comprehensive - but

 

1. you need to be clear which parts of the Act you are going to be referring to.Take two copies, you might even take three - you can print them off - mark up the pages and even highlight the sections. Why three - one for the other side.
   
2. likewise with cases and SIs - three copies - sections you want to refer to clearly marked so that when you need them you can turn straight to them.
   
3. get them nicely organized - really, prep is all
   
4. wont this be heavy? You bet. I have heard stories of people using trollies to get them in.
   
5. most important thing - think about how they might present their case and then think about how you reply to this
   

[leedoe]

So do you think the statutes and cases are fine or do i need more?

[seriously fed up]

Your defence is

 

1. no default notice so termination is unlawful they have never produced a signed agreement - indeed have refused to do so. They have produced a reconstruction which might fulfil their responsibilities under s78 (information purpose) but not the "proof purpose". The notion of information purpose comes from Carey v HSBC which you can find here Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009). I would have a read at it. What is clear is that s78 is about the provision of information and not about proof - this is dealt with at s60/61, through to s127 (3). The need for a signature is shown clearly at para 171, which says "This arises solely in connection with s61(l)(a) and the requirement thereunder that the document signed by the debtor "contains" all the Prescribed Terms" - judgement then goes on to consider how T&Cs relate to the sig document, but as they dont even have your sig, this doesnt really matter. Point is you have a nice quote there emphasising the need for a signature. You also have Wilson etc, the regs and so on. Its about combing through these and picking out the "best bits" from your point of view. What you wouldnt do, for instance, would just be to refer the Sheriff to Carey v HSBC (or Wilson v Hurstanger) - first of all he might not be all that familiar with them; but secondly these are often quite complex decisions with a good many facets and you need to provide him with "guidance".
   
2. They have produced the wrong documents in relation to the Gold Account - similar issues to above. They wouldn't I would guess even be able to produce statements of accoutn
   
3. what they have provided is not legible - another example of being able to point to the correct part of the law - this is a requirement in the Regs - specifically section 6 Signing of agreements, para 2 which says "(2) The lettering of the terms of the agreement included in the document referred to in section 6I(1)(a) of the Act, containing all the prescribed terms of the regulated agreement, and of the information contained in that document for the purpose of conforming to these Regulations shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper." The emphasis is mine - but this is another illustration - take a copy, with that section marked up so that when you make the argument you can present a copy to the sheriff and also (if you want to be really smarmy) to the other side.
   

I think that is basically your case. You have a decent list of authorities there, but between now and 17th you would profit from

 

• using the site search facility for key words - default notice (or no default notice) for instance; no signed agreement - the key issues you are flagging up. Its a bit of a bind as you will be faced with line after line of threads or posts - but you might turn some more up. My own view is that you might only be trying to pick a lock, but if you can get a thermo nuclear device to do it, all the better. This isnt a time for subtelty.
  
• identifying within your authorities the really key points that you want the court to be aware of and to take on board - for instance that section of the 1983 regs that deals with the need for agreements to be legible. There are lots of others - for instance Schedule 6 which sets out the prescribed terms. To paraphrase a former Prime Minister its about "preparation, preparation, preparation". What you cannot do Leedoe is go in and quote Wilson v Hurstanger (for instance). It needs to be "as LJ Tuckey says in Wilson v Hurstanger ....."
  

 

 

 

1. 
   

[leedoe]

Thanks for advice SFU, a new development i received form G6 from sols they want to

1. Discharge diet of debate

2.To allow pursuers 14 days to lodge minute of ammendment

3.To allow defenders 14 days to answer

4.To allow 14 days adjustment

5.To assign a rule 18.3 hearing

So do i oppose or would i be wasting my time, i could argue they have had nearly 3 months to lodge an ammendment.Your thoughts are most welcome.Also obviously their sol doesn't have the decency to call me back regarding their idea of a deal.

[seriously fed up]

Is there any indication as to why they are seeking this? What the minute of ammendment might be? My immediate reaction would be to say "no", on the basis that

 

1. how long has this thing been going for now?
   
2. How much time has been wasted by THEM seeking adjournments etc?
   
3. How long does it take for them to make their mind up about the case THAT THEY ARE BRINGING AGAINST YOU (probably worth reminding the court that this is THEIR cause).
   
4. They will say the change they want to introduce to their case is important - but if its important why has it taken till NOW for it to be introduced? Clearly, as they want to postpone the debate, its more than something minor.
   
5. lets imagine it was YOU seeking to change your case 10 days before the hearing, do you really think they would be going along with it? No, I dont either. It would be "come on, this is further delay, lets have a judgement"
   

But that is all without knowing what it is they want to introduce into court/ how they want to change their case. Is there no indication from what they have sent? If not, I would simply oppose the motion on the basis of the above (there may be other reasons btw - that is pretty much an immediate reaction, but I dont think its unreasonable. They are asking you to go along with this. Either you agree and what they propose is allowed to happen, or they propose it to the court and perhaps its allowed to happen. I cant imagine, though, that they are proposing this in order to advantage you.

In the same way, you are not expecting courtesy from the OS are you? Come, come. There are lots of tales on here of people being in court and the other side's barrister refusing even to talk to them - because they dont like litigants in person (ie they arent employing a lawyer)/ because they know they have been on CAG (seriously, this has been introduced into cases - "using a well known internet site")/ they dont like debtors. I would be inclined, in my reply to their motion to refer to their letter (I mean that is another twist in this whole thing, isnt it?), which shows/ suggests their own lack of confidence in their case, so at the last minute they are trying to extend the process by introducing something new - a wee bit desperate, isnt it? Certainly not prompted by thoughts of justice, or the efficiency of the judicial system

Btw, you will find rule 18.3 here http://www.scotcourts.gov.uk/library/rules/ordinarycause/index.asp - its a download - scroll down to chapter 18.

Edited May 7, 2010 by seriously fed up

[mystery1]

Leedoe, Been there and had the hearing for the motion on Wednesday. Sheriff stated although we may be right about abuse of process etc the rules allow for amendments and therefore he would allow. It costs £40 to oppose which had i known i wouldn't have bothered to oppose as the amendment is poor anyway and i have stuff to add to our defence. The rule 18 hearing is the morning of the debate in June.

 

I don't know how far you can go with changes though. Can you pretty much change the defence and can you alter your plea's ? If Sfu or any other clever peeps know i'd be grateful.

 

Cheers M1

Edited May 8, 2010 by mystery1

[seriously fed up]

I have attached the relevant rule (1 to this.

 

From reading this M1, the sheriff isnt obliged

- by the rule anyhow

- to allow the ammendment (see 18.2 - "may at any time before final judgement, allow ...").

 

It lies within his discretion, though I suppose "in the interests of justice" etc there may be a bias in this direction.

 

I would certainly make the point about abuse of process etc, and I cant think of any way, outside of a hearing, that I could do this without lodging a formal objection.

 

Re costs, I would also draw your attention to 18.6 re costs of amendment -

 

" The sheriff shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as he thinks fit" - so you could make a bit of trouble there (tho' I suppose even RBS in its present state may not be all that bothered about £40).

 

As for changing your defence if they put in an amendment - of course, you can change your defence to meet their changed mode of attack.

 

It would be ridiculous and wholly unjust otherwise.

 

As Leedoe points out there are 14 days for him to reply (his 3) and then a further 14 days for adjustments (his 4).

 

Which brings us back to the nature of the amendment they want to put in.

 

Can you let us know Leedoe?

 

Chapter 18.doc

[leedoe]

Went down to court today and got form G9,

 

i spoke to the clerk and he thinks they will be allowed to get the debate discharged but i have decided to oppose anyway.

 

The hearing will be done before the debate so i have to go prepared for the debate just in case.

 

Regarding the debate itself i don't need to give the court or the pursuers the actual statutes or cases they only need a list of them and the bar officer will get them for the judge

 

.I will phone the sols tomorrow and ask what their amendment is, no harm in asking they can only tell me to get lost!

[seriously fed up]

Clerk is probably right - lets face it they should know.

Didnt know that the clerk would ensure that the sheriff would get all the relevant legislation/ cases etc, but make sure you go along with your own and properly marked up so that you dont end up searching for the part that you need. One other thing to remember is that if its not a statute or a case (eg if you wanted to use the Bennion quote about 127 (3)) then you would need to take it with you (at least 2 copies).

When you phone their solicitors, I would suggest avoid being confrontational. Try to find out what their ammendment is as a matter of "the efficient disposal of justice" - you are going to have to be told anyhow and will have 14 days to put in an amended defence and then a further 14 for adjustments to be made by either side. You might even say that if you get the time to consider it you would withdraw your objection (though still intend to resist their claim). I would be really interested to find out what kind of stunt they plan to pull on you now.

The other thing to find out is their reaction to your offer to settle. Just ask what reaction they had from their client to your offer - dont ask

 

1. did they accept? Obviously they havent and they could just say no
   
2. have they heard from their client? Again that can be answered yes/no.
   

Basically ask the questions in such a way that they can never answer yes/no. How did your client react to the offer/what did your client think of the offer that i made to settle out of court. Neither of these can be answered yes/no - they need information to be given. If they have to say "cant comment on that" then at least you tried. And dont sound as if you want further negotiation - just information, you arent desperate.

[leedoe]

Lodged my opposition to the motion today and served it to sols also.Asked sol what their amendment was, it is details of a default notice when it was sent to me allegedly but interestingly it seems they don't actually have it just the details about it (you couldn't make this up) so it will be interesting to see what the sheriff makes of it.Also asked about my offer they said their client was still considering it(priceless)Now i'm looking forward to Monday:D

[seriously fed up]

I know - ridiculous. But the stroke they might pull is "look we dont keep copies of these documents, but we are a very large and well run organization with a perfect system of record keeping (try not to laugh out loud at this point) and our records show that this document was sent then so it must have been". The problem is Leedoe that that have put evidence into court and its kind of like table tennis - you need to respond, but the difficulty here is that you need to prove a negative - "oh no you didnt".

So, if they do deal with it this way, then you need to be prepared to answer back

 

1. point to their administrative failings so far
   
2. they have produced little more than a computer record of a notice being sent. But was it? For instance, this isnt "proof of postage" with you sig on it - its only a computer record
   
3. push the sheriff on standards of proof - where is the notice beginning "Dear Mr Leedoe"
   
4. how much difference to the final outcome is it going to make? They dont have a signed agreement. In one case its a reconstruction. In the other case they couldnt even up a document for the right type of account. Moreover these things are arguably not even legible. So, certainly definitely fight them on this one all the way, but keep a sense of perspective. From what you say they MIGHT have had the authority to terminate, but the still cant enforce.
   

Be ready to deal with a settlement offer at the door of the court (I hope)

[mystery1]

Enter into productions the money laundering regs.

 

1993

 

Results within Legislation - Statute Law Database

 

 

Record-keeping procedures

12. — (1) Record-keeping procedures maintained by a person are in accordance with this regulation if they require the keeping, for the prescribed period, of the following records—

(a)

in any case where, in relation to any business relationship that is formed or one-off transaction that is carried out, evidence of a person’s identity is obtained under procedures maintained in accordance with regulation 7 or 9 above, a record that indicates the nature of the evidence and—

(i)

comprises a copy of the evidence;

(ii)

provides such information as would enable a copy of it to be obtained; or

(iii)

in a case where it is not reasonably practicable to comply with paragraph (i) or (ii) above, provides sufficient information to enable the details as to a person’s identity contained in the relevant evidence to be re-obtained; and

(b)

a record containing details relating to all transactions carried out by that person in the course of relevant financial business.

(2) For the purposes of paragraph (1) above, the prescribed period is, subject to paragraph (3) below, the period of at least five years commencing with—

(a)

in relation to such records as are described in sub-paragraph (a), the date on which the relevant business was completed within the meaning of paragraph (4) below; and

(b)

in relation to such records as are described in sub-paragraph (b), the date on which all activities taking place in the course of the transaction in question were completed.

(3) Where a person who is bound by the provisions of regulation 5(1) above—

(a)

forms a business relationship or carries out a one-off transaction with another person;

(b)

has reasonable grounds for believing that that person has become insolvent; and

©

after forming that belief, takes any step for the purpose of recovering all or part of the amount of any debt payable to him by that person which has fallen due;

the prescribed period for the purposes of paragraph (1) above is the period of at least five years commencing with the date on which the first such step is taken.

(4) For the purposes of paragraph (2)(a) above, the date on which relevant business is completed is, as the case may be—

(a)

in circumstances falling within Case 1, the date of the ending of the business relationship in respect of whose formation the record under paragraph (1)(a) above was compiled;

(b)

in circumstances falling within Case 2 or 3, the date of the completion of all activities taking place in the course of the one-off transaction in respect of which the record under paragraph (1)(a) above was compiled;

©

in circumstances falling within Case 4, the date of the completion of all activities taking place in the course of the last one-off transaction in respect of which the record under paragraph (1)(a) above was compiled;

and where the formalities necessary to end a business relationship have not been observed, but a period of five years has elapsed since the date on which the last transaction was carried out in the course of that relationship, then the date of the completion of all activities taking place in the course of that last transaction shall be treated as the date on which the relevant business was completed.

 

 

Matching Legislation - Statute Law Database

 

Only use the year(s) that apply at the start of your account and beyond and check the section number as it changes although content of this section doesn't change substantially.

 

M1

[leedoe]

Another development received a call from sol today they want to deal their client will settle for £3k ,

told them no chance my token offer of a tenner didn't go down too well.

 

So told them i'll seem them in court

[seriously fed up]

is it Monday?

They dont seem awfully confident.

 

It wouldnt surprise me if they threw their hand in before the case is called.

 

BUT you HAVE to be ready to go in, take them on and win.

That is the basis you should be working on.

And that its going to be harder than it looks - it will need your best shot.

 

Btw, Mystery1's suggestion of entering in the Money Laundering Regs requirements is a good one.

 

These impose serious obligations on banks and if they are fulfilling these then they should have few problems in coming up with the documents concerning your account, but as we know they cant.

[leedoe]

Haven't received a list of authorities from the pursuers any thoughts on this ?

[seriously fed up]

tomorrow, isnt it? If so, point it out to the Sheriff first thing

[mystery1]

As i understand it they can only use in a debate anything that they have provided the court or that you have provided the court for the debate and these should have been sent to the opposition. It would only need raising if they tried to use evidence, case law, statutes they have not produced. I don't suppose mentioning it early will hinder you but if i've got the right end of the stick it won't do any good either.

 

If they produce something new ask for an adjournment as you need time to prepare as a lay person.

 

Given they are trying to deal i would think they may abandon in the morning as they obviously feel they are weak.

 

Good luck.

 

M1

[leedoe]

Yes debate tomorrow(maybe) i have the hearing on their motion first.With their lack of authorities i can see only three options

1. they are supremely confident of winning their motion and ge

tting the debate discharged

2.They are not going to rely on any authorities.

3.They will throw in the towel if they cant get the debate discharged

[seriously fed up]

well if they are going to make an argument with no authorities, good luck to them.

As M1 says if they refer to anything that they have not notified you about then you must say so. My own view was that they have not produced any authorities at all.

Best of luck tomorrow

[leedoe]

Just back from court

mixed news really

 

their sol approached me at the door and asked if we would agree to them discontinuing with no expenses on either side

 

,i told her i would want something in writing to say they wouldn't raise the case again

she then spoke to the bank and they refused to rule it out 

 

into court we went and she abandoned proceedings.

I told the sheriff i didn't agree with it but was told it was within their rights to abandon.

 

They must pay my expenses within 28 days or he will grant absolvitor

 

.It is a victory but at the same time it feels very hollow i'm sure they will just start the whole thing again.

 

But at least its a victory for the good guys!

 

Many thanks to all of you who have helped me i could never have got this far without you and a special thanks to Monty and particularly to SFU the amount of work you done for me i can never thank you enough.

[paulwlton]

Good news. Well done!

[seriously fed up]

As Paul says Leedoe, it is good news. Absolvitor is belt and braces. Will they bring it back? Only if they can come up with something radically better than they have so far. What are the chances? Pretty slim. And if they do, they face two other problems

 

1. statute barring in Scotland is after five years. I think that clock starts ticking when you last made a payment on either of the accounts. Now this has been going on now for, what 18 months/2 years? So you are getting on to half way being able to kick it into touch for good and all on this basis
   
2. they will have "other fish to fry"
   

Only other thing I would add here is that 28 days from today is 14th June. Make sure they pay up by then and if not, its back to court for your order of absolvitor.

You may not have won 6-0, more like 4-0 and its a win. So well done.

PS - if they do start again - and I dont think they will - you know where to find us. Moreover, I would hope you wont be lost to us as you now have your own measure of expertise to help others. Others - eg Monty, Beatle1234, Welshmam, Ida in Fife (apologies to those i have missed out) - helped me out a year ago when I was in the same position as you. What goes around comes around, Leedoe

[mystery1]

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

[IdaInFife]

well done and thanks to Monty and SFU and others who help us using their own free time

 

well done Lee

 

Ida x