Judgement Notice - RBS Mint debt

[foolishgirl]

Hi Ironroadman - welcome to CAG

 

Firstly don't panic, but can you provide a few more details please?

 

Is it a judgment notice or a particulars of claim?

 

Could you post it up minus your personal details?

[foolishgirl]

Seems like you have a great case for a set aside. However you need to apply asap. Suggest you read through threads on here for more info (search ccj set aside) but to start the ball rolling can you answer the following:

 

1. Is this an unsecured loan? Is the amount they have claimed more than £5000? How long ago did you take it out?

 

2. Have you changed your address since April 2009?

 

3. Did you ever receive a default notice from RBS prior to termination? Could it have been the 'letter' asking for the £400 arrears? If so, can you post up (remove your personal details)

 

4. Have you ever sent for a copy of your agreement? If not, do so immediately. It costs £1.00. State that you are applying for it under s77/78 of the CCA1974. They have 12+2 days to produce it.

 

5. Have you ever had any charges applied to the account - overlimit, late payment etc? If so, have you ever reclaimed them? Have you got all your statements. If not send a SAR (cost £10.00) & ask for them all (you can include a specific request for your agreement instead of above but you may not get it as quickly & time is important right now). They have 40 days to comply. The template is here:

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

 

When you send off for the above, do not sign the letter - it is not unknown for creditors to copy & paste onto other docs (use this:http://www.consumeractiongroup.co.uk/digitalsignature.php or sign & cross through) send POs, & mail Rec. Del so you can trace delivery.

 

Don't worry, it sounds as though you can sort it but it is important to keep all your paperwork (& envelopes if you have them - postmarks are sometimes good evidence) & do lots of research on this forum. You will have to present a defence in court & you need to be confident in your own knowledge.

[foolishgirl]

 

1. I am not sure whether it is unsecured or not. The amount is for just over £6000.00 and was taken out in 2006.

 

Think it's unlikely to be secured if it's only for £6000; however when you get CCa, please post up (minus personal details)

2. No I have not changed my address.

 

Good, they can't claim the docs were sent to a previous address

3. Yes I did.

 

Can you post it up please? Did you keep the envelope/know what date it was received? Also did you receive a LBA?

4. No I have not, will do so.

 

CCA as soon as you can!

 

5. Yes I have had charges added for late payment. I have not reclaimed them. I probably have my statements if I can find them! Will rquest them as well.

 

Good, this probably means they had an inaccurate amount on the DN, rendering it defective.

 

 

Think we need to press on with an application for set aside pdq. When did you receive the judgment? What date have they stated for payment by?

[foolishgirl]

It's actually quite simple, you just need to set out your reasons in very simple form as to why you think the judgment should be set aside. Primarily in your case it will be no LBA (abuse of CPR), no N1 received, no opportunity to defend the claim. Needs filling out of course. Look at other egs. & you will get the drift.

 

Post up a draft if you can & I will try & help out.

[foolishgirl]

I haven't had the form back from the court yet.

You can print it off here:

Her Majesty's Courts Service - Home - Forms & Guidance, type in N244 (website down at the moment)

 

I forgot to mention that I also received a Notice of Transfer of Proceedings

with the Judgement, not to my local court but somewhere else. Why would that be?

 

This sounds very strange - the procedings are usually regarded as finished when they send the judgment out. Did the judgment come from your local court or Northampton? If the latter, perhaps they have got the 'wrong' local court for you?

 

Unforutnately it does take time to research & put the forms into court but when you've done it once, it gets much easier. And when you win, it's definitely all worth it!!

 

Try & get a draft posted up of what you are going to put down on the N244 as to the reasons for set aside & I'll take a look later.

[foolishgirl]

Hi foolishgirl.

 

You suggest my best course of action is to ask for a set aside based on no LBA, no N1, abuse of CPR & no opportunity to defend the claim. If you could please confirm what exactly these mean and I will put up a draft.

 

LBA - letter before action

N1 - summons with particulars of claim (POC)

CPR - Civil Procedure Rules - must be followed before/during court processes. They are all here:CPR - Rules and Directions - Ministry of Justice

I will keep trying to upload the documents.

 

Maybe a scanner & photobucket:

http://photobucket.com/

 

 

Difficult to help much without seeing all docs I'm afraid - FG

[foolishgirl]

Thanks Ironroadman, lovely clear copies.

 

Is this all you have ever been sent? No default Notice?

 

The first letter is just a 'warning' letter, not a true LBA ie. pay up within xxdays or we will take you to court.

The judgement is just that -as you said

I have no idea why they would transfer the responsibility for enforcment to Norwich, it's not near your local court or the claimant's.

 

To progress forward, I suggest you therefore phone Banbury CC & ask (a) if they know why it would be referred to Norwich (b) to which court they want you to send your application for set aside (my guess is Banbury 'cos the judgment came from there)

 

Then start composing your application for SA. Shout if you need help on any issue. I'll try & read & post up my ideas later - builders tearing the house apart today so I'm tearing my hair out.

[foolishgirl]

The DN is really important to your defence once you get the set aside as if it is defective, even if they produce an enforceable agreement, they are only ever entitled to claim the arrears at default i.e.not the full balance.

[foolishgirl]

Good, you will also need a copy of the original POC (summons) - N1 form.

Ask the court to send you a copy asap.

Can you also post that up when you get it please?

[foolishgirl]

Good idea r&b - thanks for the input

[foolishgirl]

Thanks for the DN image.

 

Can you say what date in March it was issued? i.e. did they give you the 14 clear days + postage days?

[foolishgirl]

Looks as though the DN is correct on the time issue then; however it could be argued that it is not correct on the amount - depending on when the charges were applied.

 

You will have to wait & see what your agreement looks like i.e. if it is enforceable but at the moment looks as though you will have to base your 'defence' around the ?defective DN.

 

Suggest you put together a set aside application asap together with a 'holding' defence so you can submit to court. If you want to post up a draft, I'll try to offer some input.

[foolishgirl]

These 3 x images seem to be all the same ironroadman - the DN.

[foolishgirl]

Firstly, you have left your personal details on the agreement copy IRM, suggest you remove asap

 

Secondly, they have rolled up the PPI in the loan amount when I think it should have been in 2 seperate parts i.e. a multiple agreement which would make the agreement unenforceable. But I'll get someone with experience of mutiple part agreements to take a look...

[foolishgirl]

Here's the link re. S18 agreements:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

Looks like your agreement could be challenged

[foolishgirl]

I'm pretty sure S18 does apply to your case.

 

However you really need to get that set aside application in pdq as you should be applying within 14 days of receiving the judgment & you will get an automatic CCJ if you don't pay up or submit the SA application within 28 days.

 

Have you got a copy of the POC from the court, also the Form N244?

 

You need the N244 right now. Your reasons are really quite simple:

 

You didn't receive the summons, didn't therefore send in an AS, were not given the opportunity to present a defence, believe that you do have a defence to the claim. You also need to point out that you were living at the same address & that the judgment does not give you 28 days to pay.

[foolishgirl]

All sensible advice from r&b

 

Just phone & check with your local court where they want the applic. to go. It is usually to the court that issued the judgment & it could be that just the enforcement bit has been sent to Norwich 'cos they don't have a baliff's office at your local court.

Edited August 10, 2009 by foolishgirl
addition

[foolishgirl]

BTW suggest you also put a clause like:

 

The defendant applied to the court for a copy of the Particulars of Claim on xxx but to date this has not been received. The defendant therefore respectfully requests that should a defence submission be required by the court to be considered in conjunction with this application, he is permitted to submit this within 14 days of receiving the Particulars of Claim.

 

 

Post up your draft when you have completed it for comments

[foolishgirl]

Hooray!!

 

Thanks Steven - so glad to have it confirmed by the expert :)

 

Ironroadman, get that application in fast - you're motoring...

[foolishgirl]

Please not the use of "IMO" in the above post

 

Noted!

[foolishgirl]

This sounds fine IRM, good point r&b on the LIP bit so include the blue:

 

 

REASONS FOR SET ASIDE

 

This application for set aside of the above referenced judgment is made under CPR 13.3

The Defendant is a Litigant in Person

The Defendant did not receive the original Summons, therefore did not submit an Acknowledgement of Service to the Court at the appropriate time. It is drawn to the Court's attention the fact that the Defendant's address has not changed in the last 12 months.

The Defendant was therefore not given the opportunity to offer or prepare a defence & the Defendant believes he may have a vital defence to the the claim.

 

The Judgement order does not permit the defendant 28 days to pay the claimant.

 

The defendant applied to xxx County Court for a copy of the Particulars of Claim on 27.07.09 but to date this has not been received. The defendant therefore respectfully requests that should a defence submission be required by the court to be considered in conjunction with this application, he is permitted to submit this within 14 days of receiving the Particulars of Claim.

 

Don't forget to include your statement of truth:

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

Sign & date

 

u should def put smth in abt u being a LIP and requiring the case moved to ur local court.

i personally cant see why u shud ask their sols for smth the court shud hold? did u find out if they had passed the file over to norwich? if they have u may get a better response from there.

is ur CA rqst under a s.78 with £1 fee? if so they will ignore that as the CCJ takes preference. have u made any other document requests? if not u will undoubtedly have to use CPR for disclosure. i think as proceedings havent started u can use 31.16? see what FG/Steven think but if so, this thread covers that:

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - The Consumer Forums

 

I think you have all the docs. you need to mount a defence IRM so at the mo no need for a CPR etc.

 

It's rubbish to suggest you get a POC from the solicitor, what happened to your file contents - ignore!

 

Suggest you enclose a letter to Norwich Court Manager with your SA applic. formally requesting a copy of the POC (offer to pay any costs involved) & the case to be transferred back to your local court if SA is granted. As Banbury don't seem to have been too willing to help to date, it may be advantageous to leave the transfer until after you get your SA notification or even travel to Norwich if necessary

 

BTW if you don't have any luck with the POC from Banbury/Norwich, phone Northampton & ask them (that's MCOL - online claims clearing unit)

 

Don't forget to quote your case no. on your applic. & enclose 3 copies. Send it Spec. del - I know it costs more but it's necessary & you'll get the costs back when you win

Edited August 10, 2009 by foolishgirl
footnote

[foolishgirl]

Received a General form of Judgement or Order from Norwich County Court today.

It says: Upon the claim having been electronically transferred to the bulk charging order unit at Norwich at the claimants request

 

oh well that explains a lot!

 

for the purpose of issuing an application for a charging order, but no application having yet been received and upon reading the response to the transfer notice

it is ordered that

1. this case be electronically transferred to the defendants home court.

2. Any applications to be issued at that court.

 

I have also received a notice of transfer of Proceedings to my local county court.

 

Good

 

Am not sure if this means they have read my set aside or not. I still have not received a reply to my request for the POC.

 

No, not necessarily, just that the case has been transferred

Do you think I should ask for the POC from my local court now, or wait for a reply from the Norwich court manager?

 

Suggest phoning local court first to see if they have received your files or you will be playing tag all over the south of England!

Do you think "Reading the response to the transfer notice" means that he has read my application to set aside?

 

Probably not, that will be left to your local court. Suspect the transfer was automatic because Norwich had heard nothing further from the claimant.

 

Give it until next week then phone local court manager & ask what the xxx is going on - in the nicest possible way of course;)

[foolishgirl]

You should try & obtain the POC again from Banbury asap to enable you to prepare a defence if/when you get the set aside as you may not get much time to prepare it before the hearing is ordered on the claim.

 

Re. your SA hearing, you really have all you can supply at the moment. Just make your case clearly to the DJ that you knew nothing about any summons to court prior to receiving the judgment. Also ask him to ensure you get a copy of the POC from Banbury to enable you to compile a defence if you don't receive it before then.

 

How long have got before your set aside hearing?

[foolishgirl]

OK, the reasons for the set aside at the moment are as stated in your applic. However should the DJ ask why you think you have a defence I would suggest the following:

1. The agreement you have received form the claimant does not comply with the CCA1974 i.e. it is a multiple agreement but has been issued as a simple agreement & as though there is only one reason for the credit; there is not, there is also the PPI. Therefore the prescribed terms for both parts of the agreement should have been shown seperately & signed for seperately. See CCA1974 & corresp. regs:

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

Also this thread for more info:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

I suggest you really study these as this will form the basis for any arguments you need to make in court & not all DJs are familiar with consumer credit legislation.

 

2. A possible defective DN as you suspect the amount stated included unlawful charges (although at the mo can't be established without the statements from the OC). However if this proves to be the case, the OC has terminated the agreement unlawfully & is therefore only entitled to the arrears as of the date of the DN, not the full balance as claimed in the POC. The case law is Woodchester v. Swayne:

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[foolishgirl]

Having not received a copy of the POC from either Banbury or Norwich, I contacted my local court to ask them if they could provide me with a copy. Incredibly they said they did not have a copy and that they would contact the claimants and ask them to send me a copy! To date I have not received it.

 

Oh dear me, what is the court admin. up to?? If you don't receive a copy of the POC, I suggest you put great empahasis on it at the set aside & ask the DJ to order the claimant to supply a copy within 14 days ( as the court seem unable to!!) with at least a further 14 days after receipt for you to submit your defence.