Judgement Notice - RBS Mint debt

[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

[Ironroadman]

Thanks FG, Steve, & r&b it is most reassuring to know you are there to advise on what can seem a very overwhelming business.

I will keep you posted on any new developments. IRM

[Ironroadman]

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 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.

 

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.

 

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

 

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

[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;)

[Ironroadman]

Thanks FG will wait and see what happens and keep you posted.

[teaboy2]

quick question about the default notice they sent you, as i just recieved one today for a credit card. but thanks to info from Robcag i have nothing to worry about.

 

so question is, was the default notice sent to you via royal mail 1st class post? if not or not sent through royal mail but a private mail company then it is deemed to have been sent by 2nd class in which they have to allow for up to 4 working days after the date of the letter for you to recieve the letter. which if that is the case then you will have recieved the letter on roughly the 30th march, which in turn would have only left you with just 10 days to respond instead of the 14 days your entitled to, which makes the default notice invalid.

 

thank Robcag for this information and i hope passing it onto you helps you with you case. Also bear in mind that is is them that have to prove that it was sent first class which they are unlikely to beable to do unless it was sent via recorded or special delievery where ud have had to sign for it.

Edited August 14, 2009 by teaboy2

[Ironroadman]

Thanks for that info Teaboy2. I know it definately wasn't sent Royal Mail, but am not sure if I can find the envelope. The trouble with the private mail ones is it is difficult sometimes to see when it was posted.

I will certainly have a good look though.

[teaboy2]

Thanks for that info Teaboy2. I know it definately wasn't sent Royal Mail, but am not sure if I can find the envelope. The trouble with the private mail ones is it is difficult sometimes to see when it was posted.

I will certainly have a good look though.

 

Well even without the envelope you could still strict them to prove when it was posted and how. and if posted through use of any postal company other then royal mail then it is deemed to be posted as 2nd class post anyway. and given first class can take upto 2 working days then its save to assume that 2nd class can take upto 4 working days, therefoere the sender most allow for the time it takes from posting till delivery at least thats how i understand it.

 

HEres a link to the post in my thread where Robcag give me the information. it may prove useful to you

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/214788-whats-difference-between-defualt.html#post2363933

[Ironroadman]

Latest Update.

 

Today received Notice of hearing of Application from my local court.

 

Still no POC from either them, Banbury, or the Court Manager at Norwich, even though I had requested a copy as a matter of urgency!

 

Should I try and obtain one from my local Court now do you think, or would I be better trying the MCOL at Northampton?

 

Is there anything else I need to do to prepare for the Set Aside Hearing, or do you think I have enough to go on now?

[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?

[Ironroadman]

Thanks FG.

 

The Set aside Hearing is on the 16th September 09

[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)

[Ironroadman]

UPDATE

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.

I have obtained a payment history from MINT I will copy it and post it up.

IRM

[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.

[Ironroadman]

UPDATE

 

I still have not received the POC from either the Court or the Claimant, so will have to ask the DJ to order the Claimants to supply a copy.

 

I have posted up the Statement OF Payment History I received from Mint it can be seen on the links below.

 

I can't understand where the figure of -£27.00 came into the equasion on page two. Can anyone explain this, and do the figures make sense?

 

Thanks IRM

 

http://02C134c.netsolhost.com/Mint6.gif

http://02C134c.netsolhost.com/Mint6b.gif

[foolishgirl]

I still have not received the POC from either the Court or the Claimant, so will have to ask the DJ to order the Claimants to supply a copy.

 

You have no option!

 

I can't understand where the figure of -£27.00 came into the equasion on page two. Can anyone explain this, and do the figures make sense?

 

I think the £27.00 may have come about because somebody has entered an incorrect figure of £263.12 instead of £236.12 on your statement so the POC will prob. be wrong solely on this one point - incorrect sum claimed!

I have to say, I think the rest of it is deliberately designed to confuse

eg. the 2 columns headed 'payment due', 'payment received' show all payments made in accordance with agreement, then in August 2007, it shows payments made & then arrears along the same payment line. Was this a returned DD or somesuch? Can you check all the payments they have credited against your bank account statements to ensure that they have credited each one correctly?

 

Also there is PPI added to the balance. Without looking through all the thread again, did you request this & could it have been mis-sold?

 

FG

[Ironroadman]

Thanks FG I hadn't spotted that! Whether they entered the wrong amount or whether I paid the wrong amount I am not certain. Will try and check all my bank statements to try and find it.

As regards the PPI, I did request it, but it is totally useless, as being self employed you have to literally cease trading to make any claim. It does not cover reduction in earnings, only total loss.

IRM

[foolishgirl]

As regards the PPI, I did request it, but it is totally useless, as being self employed you have to literally cease trading to make any claim. It does not cover reduction in earnings, only total loss.

IRM

 

Did they tell you that when you took it out? If not, it was mis-sold & you can make a claim for it. And if it wasn't mis-sold, you should look into cancelling it. However PPI is a seperate issue for the moment & there is plenty of help on it on the forum.

[Ironroadman]

No, it was just "Tick & sign the box if you want PPI".

I am assuming it is cancelled now.

IRM

[foolishgirl]

No, it was just "Tick & sign the box if you want PPI".

I am assuming it is cancelled now.

IRM

 

Don't assume it has been cancelled. It looks like the premium was added at the beginning of your loan & is accounted for in your payments so is still presumably acccruing interest & is being added to your arrears. You need to work out the calculations carefully.

 

Did you sign this loan on a company's premises, online or at home?

 

It's possible that you may have been mis-sold the PPI if nothing was explained to you in which case you could make a claim for the whole of the amount you have 'erroneously' paid. Suggest you read some of the threads on PPI & see if it applies to you. If so, it would be worth making a counterclaim as part of your defence when you get your set aside.

[Ironroadman]

No it was just a form to sign & return. http://02c134c.netsolhost.com/mint4.gif

Thanks FG will certainly look into that.

In Court tomorrow to ask for Set Aside!

IRM

[foolishgirl]

Yep, looks to me as though it could have def. been mis-sold i.e. not porperly assessed & not suitable for your requirements as you were self employed but I am not an expert in PPI.

 

Good luck for tomorrow - you should walk it; if you don't there really is no justice.

 

Don't forget to ask for your order re. POC!

[Ironroadman]

Thanks FG will let you know how I get on!

[Ironroadman]

UPDATE

Arrived at court this morning to find that as well as my set Aside hearing RBS had also applied for another Charging Order!

 

However after putting my case to the DJ he agreed that the Judgement should be set aside, and I got my order. He also dismissed the Charging order.

 

I have to say it is a nerve wracking experience going to court, but not half as bad as the tea they serve in the cafeteria!

[foolishgirl]

Arrived at court this morning to find that as well as my set Aside hearing RBS had also applied for another Charging Order!

 

They are SO cheeky!! Suspect they were hoping you wouldn't turn up for the set aside & they would get another judgment by default.

However after putting my case to the DJ he agreed that the Judgement should be set aside, and I got my order. He also dismissed the Charging order.

 

Hooray, a DJ that sees common sense - not that he really had an option

I have to say it is a nerve wracking experience going to court, but not half as bad as the tea they serve in the cafeteria!

 

Well, at least now you know what to expect at a hearing

 

 

Well done, first hurdle cleared. You're on your way Ironroadman, you just need to put in some hard work now on multiple agreements, mis-selling of PPI, defective DNs etc. etc....

 

Did you get your order for the POC? Did the DJ also indicate the steps forward eg give you a date by which to enter a defence?