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

[leedoe]

thanks for all your advice my defence for this action was that they don,t have a signed agreement they admitted on the phone they have lost it and despite my written requests for it they still have not produced it.As you will see in my plea in law i have used section 77 of cca 1974, i now can see this has no basis in law as they have produced a unsigned copy which fulfills their obligation.What i need to know is can i get the record re-opened ? and how can i get the fact that they have refused to produce a signed agreement into a plea in law?

[Coactum]

I had another thought. If the case goes against you then it might be appropriate to enquire if the Sheriff owns shares in RBS, if so, then he had a financial interest in finding for the pursuers and as such this would call into question his judgement. Now quite what you do with this I’m uncertain but it may be useful if an appeal is sought and at such retrial/appeal you may be permitted to introduce new evidence. As I say I’m not at all sure about these things but it must be worth reading up on to see if there is merit in exploring such a course of action.

[leedoe]

thanks something to think about later

 

if i can get an extension to the adjustments then i will use the miss-selling of the ppi also i never received a copy of the loan agreement at the time or within 7 days of signing also i have no DN so i will ask for copies of them and obviously they have no signed agreement i,m sure i can come up with a defence out of this

[seriously fed up]

OK, first things first. The agreement in the amended writ that they sent you in February (?) is this "yours" (ie is it a copy of the agreement that you signed - is your sig at the end of it?). If not, then I would say that s77 does apply and that an unsigned copy was not sufficient at the time you put in your defence. Not exactly sure why you think s77 would not apply but the most obvious reason is the recent decision at Manchester. Whether it would apply in your case or not is questionable

 

1. this judgement was only handed down on 23rd December and as a Litigant in Person, its expecting a lot for you to know
2. it was in Manchester in the English High Court, so while its probably influential, its not authoritative - only a Supreme Court (House of Lords) decision in England would be authoritative in Scotland
3. but a more important reason is that when you put your defence in, I dont think the Manchester case had even started, so it would be hard for you to take that into account
4. but the most important reason of all is that while it does seem to be the case that Manchester allows lenders to provide a reconstruction, and to continue with their enforcement procedures, it shouldnt be taken to mean that a court will enforce on the basis of a reconstruction. The Manchester case focused on s77 (actually 78 as it was as credit card case). Its focus was not s61 which says "61.—(1) A regulated agreement is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,
   and
   (b) the document embodies all the terms of the agreement, other than implied terms, and
   © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."
5. I have highlighted the relevant part. So, the issue is still "the document in their amended writ, is this yours or is it a reconstruction?" If its yours, I am afraid there doesnt seem a great deal you can do (I had a wee look for myself at Loanguard and I dont think that will lead anywhere - the protection for the self employed isnt that great, but it does say that self employment isnt a bar - its not exactly clear who is actually taking the risk though - you might want to pursue that one a bit more) - though I agree with Coactum, if you were insured why not claim? My guess - and its no better than a guess - is that Loanguard will only pay out if you are not trading. It wont pay out if you are trading but not successfully enough to make the payments (like I said, the protection isnt that great).

 

On the other hand, if the document in their writ is NOT yours then I would take them on on that basis. First of all, I would argue that they have not fulfilled their s77 obligation (ok they have provided a reconstruction but - and make a point of emphasising that the law has been "amended" since your defence went in - is that adequate?).

 

Now whether the court will hear further argument if its decided that RBS have fulfilled their s77 requirements by providing a reconstruction, I dont really know - Monty is the man for procedure.

 

But lets hope they do, and if they do, you need to develop your argument on the basis that RBS are in breach of the administrative requirements of the Consumer Credit Act. This requires (see above) that there is a document containing the prescribed terms that has been signed by you and by RBS. They have not produced this.

 

This takes us on to s65, your agreement being improperly executed. This says "65.—(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." Bad news? Well no,not necessarily as S127(3) applies (I am assuming here that you took this loan out before 2006 as the law changed then to repeal para 3). It says "(3) 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 hirer (whether or not in the prescribed manner)."

 

Thus, to follow this through, what you are arguing is "Sir, the pursuers have been unable to produce a properly executed agreement in terms of s61. They have produced no more than what they claim is a reconstruction, but nothing that bears either my signature or my personal details. Thus any agreement could be enforced only by order of this court. However, the agreement RBS claims exists between us, precedes the Consumer Credit Act 2006 (it was this that repealed s3) and thus s127 (3) of the Consumer Credit Act 1974 applies which specifically states that "

 

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 hirer (whether or not in the prescribed manner". Dont let them get into "debtor avoiding his debts" territory. This is down to their administrative incompetence by not having a copy of the agreement to present to the court to allow the court to enforce. Its about the documentation, not the debt.

 

However, this depends ENTIRELY on them not having a copy of YOUR agreement. If they do, then sorry but .....................

Re your credit card, which is the relevant document - the one in the writ or the word file you posted at the same time. If its the one in the writ, its actually the same argument (though you might want to chip in with legibility) - s61 (1)(a) has not been complied with (no prescribed terms for a start - in passing , just so we are clear, THIS is YOUR agreement?), so s65 so s127(3). However, I am still not clear about the Word document - if that is yours and they have a copy then I dont think there is much we can do there. On the other hand, I dont know why they wouldnt include that in the amended writ. Any ideas?

So, you need to

 

1. be absolutely clear - is the loan agreement in the amended writ, YOUR loan agreement or not? Or is it a reconstruction?
2. which is the relevant credit card form? What is in the writ? Or does the one in the Word file have anything to do with it?
3. get some advice from Monty about adjusting your plea (cant find this btw) at the hearing.

[leedoe]

i would like to clear up some confusion :confused:on this thread there is nothing in it about credit cards the docs that are barely legible are bank account applications which at present i am not too worried about

 

thanks for such a detailed reply sfu the document is a reconstruction i have to go out now but i will be back on in a couple of hours thanks for your help

[seriously fed up]

i would like to clear up some confusion :confused:on this thread there is nothing in it about credit cards the docs that are barely legible are bank account applications which at present i am not too worried about

 

sorry about the credit card mistake. I googled the name of the account and it seemed to come up as credit card.

I dont know about this. Does a bank account come under the CCA? I would guess it does if it grants credit (overdraft) so so same considerations as for the loan.

Btw, what is the word document you posted on 19th March?

Last thing - you could do a lot worse than use the defence that Ida posted up about that time (post 68 and 70) - its saying the same thing, but much more nicely than me!

Just found your defence btw (the one that Monty amended - post 37) - I dont know what it is about this thread but it confuses the bejasus out of me - I think its fine re the loan. Its all there - non-compliance with 77 (if they quote Manchester then remember its influential but not authoritative, so the court might accept it, but its up to the Sheriff - and in any event your defence went in before that judgement came out and are an litigant in person so they should cut you some slack). But even if they do accept the recon as compliance, there is still the issue of not having your signature on the document and you have quoted s61 etc in the latter part of the defence. So keep your eye on the ball - the issue is their compliance with the requirements of the Act in order to enforce - nothing else.

Edited January 25, 2010 by seriously fed up

[leedoe]

Hi regarding the doc on 19 march it seems i put a credit card agreement on by mistake my apologies for the confusion.Went down to court to speak to the sherrif clerk regarding an extension i have to ask for a 2 week continuation to allow me to serve a motion for a minute of amendment ,asking for an extensionof the adjustments, its really up to the sherrif ,the clerk didn,t seem very confident it would be granted

[seriously fed up]

If I was the Sheriff Clerk, I dont think i would filled you with confidence about a two week extension. I would have thought the last thing he would need is a litigant saying to the Sheriff "But your clerk said it would be ok" - dont think he would be a Sheriff Clerk much longer if that happened too often. So, I think its fair to say "he would say that, wouldnt he?"

On the other hand, I have to say I think he might be right. This has been chuntering on now for about a year and I think that counts against you.

On the other hand, what's the problem if the case is heard in full this week? As long as

 

1. the loan agreement is a reconstruction and they have lost yours
   
2. you have used the redrafted defence that Monty set out for you
   

then you can still try your luck by arguing that they havent fulfilled your s78 request (not unreasonable as the request was made before the Manchester decision). If that doesnt work, then your defence still allows you to go down s61 (no document can be presented that includes your signature, so they are in breach of that), work through s65 and thence to s127(3).

Its POSSIBLE they will come back with "he wouldnt have got the money unless he had signed - THAT's procedure" - but its hardly the rules of evidence and the CCA is quite clear"61.—(1) A regulated agreement is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner" Where, Mr RBS brief, is the proof? Where is your evidence?

As I said, you may need to keep them away from "debtor trying to avoid debts" routine and keep them to the administrative requirements of the CCA.

Edited January 25, 2010 by seriously fed up

[LOVETHEBANKS]

 

Section 61 won't apply to the overdraft as it comes under part five of the act and is exempt.

[seriously fed up]

True, but the same section 74 reads (at 4)

"(4) If any term of an agreement falling within subsection (l )(b) for instance an overdraft or © or (2) is expressed in writing (form is in their amended writ), regulations under section 60(1) shall apply to that term (subject to section 60(3)) as if the agreement were a regulated agreement not falling within subsection (l)(b) or © or (2)."

So the requirements of the 1983 Agreement regs arguably apply - looking at the form that RBS are putting up, I dont think it even begins to correspond to the requirements of schedule 1 for a start. I do hear what you are saying, but its worth a try.

and the loan certainly is a regulated agreement which is not exempt

[leedoe]

thanks for all the help and advice,i will take a couple of days reading over eveything and try and get ready for friday does anyone no what will happen at court will it be the full hearing or will they just ask if i am carrying on with my defence without my sol ?

[seriously fed up]

good idea to get your head together for Friday.

Re what will happen, I might pm Monty - he will know far better than me.

[leedoe]

Hi all i have just realised that i have not submitted a rule 22.1 does this mean the judge will repell my pleas? If so what are the implications ?

[leedoe]

Going to court tomorrow going to ask sheriff for extension to the adjustments . Hopefully he will be in a good mood

[seriously fed up]

Lets hope he is Leedoe. But I would be prepared to answer the case as best you can tomorrow, just in case as set out in the defence you put in - s61 is there.

Good luck

[IdaInFife]

good luck for today

 

Ida x

[Coactum]

Whilst I hope your request for an extension was granted and that we can continue to assist you it may help others to know how you got on regardless of the outcome.

[IdaInFife]

any news Lee?

[leedoe]

Hi all went to court on friday not as bad as i was expecting the sheriff was very good and not at all intimidating. I got a three week extension for the adjustments and a new options hearing on the 5th March.Their sols asked for decree to be granted but he refused saying it was reasonable to grant the extension.So i will get a draft defence posted up for your thoughts this week.

[seriously fed up]

Good VERY glad to hear that. Let's hope your fortune continues. :D

Get the defence up soon as - better to put something up soon, even to get it corrected, than to work away on your own for much of the three weeks that you have and then it gets corrected.

[leedoe]

Will do sfu will get something up on tuesday and you guys can correct it . Thanks to you all for your support very much appreciated

[Coactum]

Glad to hear your case is not yet over and that you still have the oportunity to put forward a defence.

[leedoe]

This is a rough draft of my defence all help to adjust it will be appreciated

 

SHERIFFDOM 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.

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 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.

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.

Edited February 7, 2010 by leedoe

[Coactum]

It looks good although you might be wise to omit comment like "though they are happy to produce several years worth of bank statements without much concern for data protection" within this defence and leave that to be mentioned on the day if the opportunity arises.

 

You should also make a point that an invalid Default Notice cannot be remedied at a later stage and that such default notice should have stated a date by which the you would be required to comply after which, if not remedied, default would result and the agreement would terminate. Their failure to follow due process prohibits them from enjoying the benefits of Section 87 and means that they cannot pursue an amount that would have fallen due at a future date (although they can still demand any arrears that were due at the time of the alleged default)

 

You may want to refer to Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255

Edited February 2, 2010 by Coactum
correction

[seriously fed up]

• Re 2 and 3, better to begin "denied" or "it is explained that" - make it clear right from the start what the proposition is - best not to annoy the sheriff.
  
  
• Re 2, its either denied or explained, not both, I think
  
• i dont get the bit about ppi, in particular - it seems to me to get in the way of the development of the argument that the account is just not enforceable because they cant produce the agreement. You need to be focused
  
• Re 3, just wanting to check, are you saying that there never was an account or that the agreement is just not enforceable? Again you need to be clear and focused (btw its illegible not ineligible - dont mean to sound a smart arse, but they might just pick on this - quite different things)
  
• Re the pleas in law, I think you need to be clearer about the argument that you are putting up - for instance "as there is no signed agreement the pursuers are in breach of s61 (1)(a) and therefore the account can only be enforced by order of the court (s65)(1)). However, s127(3) specifically prevents the court from making an enforcement order under s65(1), and therefore the defender craves the court to dismiss the pursuer's application and for the Court to use its powers under Section 142 of the same Act to declare the purported agreement unenforceable. "
  

These are particular points, but I think the main thing is keeping your points focused. You are trying to lead the sheriff to draw the "right" (for you) conclusion so clarity is crucial.