RBoS T/A Mint Issued Legal Proceedings - Help

[michellechick]

My partner took out a Mint Credit card in January 2004. He is paying them £1 a month and has since June 2008 after sending them a Financial Statement produced by Citizens Advice. We received a letter from them stating that the £1 per month was unrealistic but will accept it for 6 months.

 

Our plan was to pay the £1 per month until our house sells and then pay off the debt. We did not want it to go to a DCA and read various posts on this site which told us about asking for CCAs. We sent them a letter (taken from a template on this site) recorded delivery on 14/2/09 but haven't received the CCA. We thought that by going down this route it may help us to negotiate on the amount owed but also would stop them sending it to a DCA.

 

We received a letter from RBoS solicitors, Spratt Endicott, and a claim form stating:-

"The Claimant's claim is for monies due under a consumer Credit Agreement between the Claimant and the Defendant. Notice of Default having been sent to the Defendant on 24.09.08. Full particulars of which have been delivered to the Defendant. AND the Claimant claims the sum of £5,xxx.xx."

 

They are also claiming interest from the date which the loan became due together with Court Fees of 190.00 and Legal costs of 100.00 from the date of issue of the proceedings.

 

What do we do next? What do we put as our defence?

 

They have applied to Banbury Court but we live in Lancashire, do we have to travel over there to attend court if we defend?

 

The Claim Form asks if we wish to counterclaim and that there will be a charge. Does anyone know how much this will cost?

 

If they are willing to go to court does this mean that they have the signed CCA?

 

Can anyone please help?

[DocH]

Hi michellechick,

 

Do you intend to defend this claim in full?

 

I see that the claim was issued via Banbury and in the circumstances, along with the claim, you should have been served with copies of the documents the claimant will be relying on in court. Clearly they haven't served those documents so that is their first mistake.

 

If you intend to defend the claim in full then you need to send off a copy of the CPR 31.14 letter asap, by Recorded or Special Delivery:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Do not sign this letter with your normal signature.

 

Before you send it though please have a read of this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

If you have £10 to spare it would also be a good idea to send off an SAR to the RBoS, to see what they have on file and may produce something with which to counterclaim ie penalty charges.

 

As a Litigant in Person the claim should be automatically transferred to your local court if you are defending.

 

It does not necessarily mean they have a CCA, neither does it mean they haven't. The claim could have been issued in the hope that you would not defend it, because you will be intimidated by having to go to court.

 

You can find the costs for all county court related fees here:

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

[michellechick]

Thank you so much for this. We will send the letter off straight away and will let you know what, if anything, we receive. I have looked at a letter template for sending a SAR and it states that they have 40 days to reply. How can this help me in my defence as I only have 28 days to reply?

Edited March 3, 2009 by michellechick
Wrong information

[underdog13]

Subbing - wishing you the best of luck with this, michellechick:)

[DocH]

Thank you so much for this. We will send the letter off straight away and will let you know what, if anything, we receive. I have looked at a letter template for sending a SAR and it states that they have 40 days to reply. How can this help me in my defence as I only have 28 days to reply?

 

You're welcome. A lot will depend on what is put in your initial defence, which if RBoS don't supply the documents requested, will be an embarrassed defence. That being the case, within the defence we will ask the court's permission to submit a further fully particularised defence in which we can include anything the SAR turns up. Also the SAR may turn up penalty charges on the account for which you can put in a counterclaim.

 

It is always a good idea to give the court a ring, if you haven't done so already, to check the date when your defence needs to be filed and to ensure that the case will be transferred to your local court on filing your defence.

[42man]

Some really great advice from DocH here, you have to acknowledge the claim within 14 days of the date on the claim form stating you want to defend ALL (if that is what you want to do)....then you get a further 14+3 days in which to submit a defence, however it is to early to submit (but do acknowledge stating you wish to defend) a defence....please keep a VERY CLOSE eye on the timescales and wait to see if they respond to your CPR31.14....in the meantime have a look at these

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

[lilly white]

michellechick welcome to cag you are in good hands

 

May i suggest to you read Basic introduction to consumer credit litigation.

which is a sticky in this forum

 

best regards lilly

[michellechick]

Hi.

 

We have today received the CCA along with terms and conditions. This is the CCA.

 

http://i716.photobucket.com/albums/ww162/michellechick/CCA.jpg

 

It doesn't look good and yesterday we sent them a letter stating that we have notified court that we will be disputing all the debt! We haven't yet though and we are due to see Citizens Advice tomorrow. Any help would be gratefully appreciated.

 

Also, not sure if this helps but, we have a letter from Mint in January which states "Provided that the £1.00 per month part payment is made on the required dates, no further action will be taken in respect of the outstanding debt. However, should you default on any month's repayments, the Bank will take steps to recover all monies owing under your account, and your account will be placed in the hands of an external Debt Collecting Agent." Since receiving our letter requesting the CCA they supplied us with a letter on 17th February stating that if we did not send full payment by 24th Feb they would instruct legal proceedings without further notice which they then issued court papers. Can they do this?

Edited March 5, 2009 by michellechick
More to add

[DocH]

That's an application form with none of the the prescribed terms other than the APR across the title of the document. The two boxes at the bottom right are illegible on your scanned copy and if it is the same with the unscanned copy you have then it also fails the legibility requirements.

 

Can you also scan and post up the Terms and Conditions please. Can you tell if the T & Cs are part of the application form?

 

"Provided that the £1.00 per month part payment is made on the required dates, no further action will be taken in respect of the outstanding debt. However, should you default on any month's repayments, the Bank will take steps to recover all monies owing under your account, and your account will be placed in the hands of an external Debt Collecting Agent." Since receiving our letter requesting the CCA they supplied us with a letter on 17th February stating that if we did not send full payment by 24th Feb they would instruct legal proceedings without further notice which they then issued court papers. Can they do this?

 

Did/have you defaulted on any of the £1 monthly payments?

 

Yes they can do this, whether it was a wise move or not remains to be seen.

 

Did they serve a Default Notice on you at all?

Edited March 5, 2009 by DocH
added another question

[michellechick]

Have scanned the T&C, Conditions of Use and Consumer Credit Act which they sent to me.

 

Yes they have sent us a few Default Notices and a Termination of Account.

 

The boxes at the bottom right of the Agreement are mostly legible on my copy, although the stamp they have tried to put over them has obscured it slightly. It states on here "The current Conditions of Use ("Conditions) as set out overleaf apply to all uses of the RBS Advanta credit card and form part of the Agreement. The following financial particulars are shown below in accordance with the Consumer Credit Act 1974." They have photocopied them separately so you cannot tell if they were on the back of the Agreement.

 

No, we haven't defaulted from paying the £1 a month.

 

Hope this helps.

[michellechick]

Have scanned the T&C, Conditions of Use and Consumer Credit Act which they sent to me.

 

 

 

 

Yes they have sent us a few Default Notices and a Termination of Account.

 

The boxes at the bottom right of the Agreement are mostly legible on my copy, although the stamp they have tried to put over them has obscured it slightly. It states on here "The current Conditions of Use ("Conditions) as set out overleaf apply to all uses of the RBS Advanta credit card and form part of the Agreement. The following financial particulars are shown below in accordance with the Consumer Credit Act 1974." They have photocopied them separately so you cannot tell if they were on the back of the Agreement.

 

No, we haven't defaulted from paying the £1 a month.

 

Hope this helps.

[42man]

You say they have sent you a 'few' default notices ? are they correct ? prescribed form ? They are only allowed to default you once.....did the DN give you 14 clear days to remedy ? or did it give you 14 days from the date on the letter (which is incorrect !!!) Have they only sent the application ? nothing else (as they are in breach of the CPR by not sending the default notice...

 

The 'agreement' clearly says application.....

 

And the signature page doesn't have the prescribed terms on it...

[michellechick]

We received a DN on 1st September, giving 17 days from date of Notice to make a payment of £179. The next DN is dated 23rd September giving 17 days to pay £272.00. The next DN is dated 26th November thanking us for telling them that we were unable to correct the position on the account because of financial problems. They then go on to say they are withdrawing the credit facility and enclose a DN. They then say they have sent this DN by law before they can terminate the agreement and arrange a repayment programme. The agreement will be formally terminated and they will contact us again with regard to the repayment of the outstanding balance. Arrears now being £460.

 

An Account Termination letter was received on 8th January asking for full payment of the outstanding debt within 14 days. However, they then go on to say that their Debt Recovery Office will be in touch with regards to a payment plan.

[42man]

Did you make any payments between 1st Sept and 23rd Sept ? What was the date on the 1st default notice ?

[42man]

Have a read here too - http://www.consumeractiongroup.co.uk/forum/legal-issues/184381-my-day-court-circus.html

[michellechick]

First default notice dated 1st September and yes, made a payment of £2 on 5th September.We have never not made a payment but obviously not paid the minimum payment.