RBS Ordinary Cause Citation - old Business Loan With Personal Guarantee

[Monty2007]

 

Hi George

 

This is a very standard writ for an Ordinary Cause summons with respect to a disputed debt and you must return Form O7 (notice of Intention to Defend) with the fee of £80.

 

Personally I would take it to the Sheriff Court and ensure you get it lodged on the Record. Especially that the postal service is now subject to industrial action.

 

The Ordinary Cause process is outlined in this link:

 

Ordinary Cause Rules

 

I would also get hold of a copy of Charles Hennessy's book entitled "Civil Procedure and Practice" (costs about £40) which will give a good introduction to the process and help with the terminology and provide a basis for your defence and pleas in law.

 

You have to lodge Form O7 with 21 days as it states in the writ, the court will then issue you and the Pursuer Form G5 which sets out dates for submission of your defence and a period of adjustments to both their writ and your defence and pleas-in-law.

 

The purpose is to allow the Sheriff to focus on the key issues of the case, during the adjustments process it will be between just the Defender and the Pursuer, following which the final version will form "the Record" which is what the Sheriff will make a decision on at the "Options Hearing". Don't worry too much about what these mean at the moment.

 

The key point is that the process is long and drawn out, purposefully to enable settlement through the adjustments process.

 

The disclosure of documents during an Ordinary Cause process is through serving a Motion which can be done through a solicitor or Bailiff or at the Bar (at the hearing).

 

They will also need to provide you with an Inventory of Productions when they submit the final Record that will contain any documents that they seek to rely on in court, you will have to do the same.

 

My case filled three lever arch files since the Sheriff wanted each case printed out in full and all acts/SI's etc. So be prepared for a lot of work.

 

What I would suggest is that you:

 

1. File Form O7, post up what you get back in respect of Form G5.

 

2. Serve a Subject Access Request on the creditor/Pursuer as Ida suggests. You should also request your agreement and use a template letter from CAG. Send both with the correct payments and via Guaranteed next day delivery, do it quick since the post office is about to strike.

 

Then post up what you get back.

 

One note of caution:- the costs with an ordinary cause action can be substantial, the process can go through legal debate, proof (leading of evidence) or proof before action (essentially the same). However many never get this far, but you need to be sure about your defence and legal arguments.

 

You should think about your defence?

What angles do you have?

the agreement?

the insurance?

the default notice?

[Monty2007]

My earlier post from the morning did not take, so here goes again. Apologies if the earlier post appears and is slightly different from this one.

 

It seems RHood was correct, I arrived back home this weekend to find Writ Papers, not in an envelope or any other containment, but just posted through the door. I can just imagine these desperados standing at my door ringing the bell.

 

They did this to me, first tried to give the writ to my wife and then posted it through the letter box, no envolope........

 

Anyway to get back to the point, attached to the writ was Form 07 to be used if I am to defend myself, which I will do with all my vigour and robustness.

 

My question is "Where do I ask for any paperwork to be made available ro me?" or do I just fill in Form 07 and start asking for paperwork at a later date.

 

You will get this later in the process, either within their Inventory of Productions when they lodge the final Record. If you don't you can make a "motion at the bar" at the Options Hearing and ask for an extension of the adjustments process. The Scottish process is very flexible and in the favour of the Defender.

 

The Writ itself states I have refused to pay or delayed payment, yet I have been making repayment of over £400 per month for at least the last 6 months via a Debt Management Plan administerd by the CCCS. To date no payments have been missed.

 

This will go in your favour since you have not defaulted on the agreement with them. What did CCCS say about this? Have they made the demand for full repayment following the payments through CCCS?

 

Also, The Pursuer is the RBS, yet the account was passed to NatWest on 05 August, I have documentary evidence of this, therefore who actually owns this alleged debt? I know they are all part of the same group, but surely all terminology and statements have got to be correct.

 

If the debt is with RBS then they must issue the writ in their name, which they have. I just won a case against HFC Bank plc since they issued a writ for a John Lewis card. Although HFC own John Lewis Financial Services the agreement was NOT with HFC so they had no right to bring the action. They withdrew and I hit them for costs.

If NatWest had issued the writ then you could have claimed the same, so I don't think you have an angle here.

 

Any advices will be greatly appreciated.

 

Regards

 

G

 

Comments in red

[RHOOD]

George, when i asked for the other side's paperwork they hid behind "subject to privilege exempt from disclosure"

 

Did you get SAR letter away to RBS Edinburgh,or NAT WEST also ask CMS telford ( IF INVOLVED) and solicitors ( who take ages to pass on paperwork about 2 weeks- delaying tatic which we can use to your advantage on your defence )

 

Also get an up to date copy of payments made to RBS/NATWEST from your CCCS and find out :

1) who is getting your payments - GREEN AND CO ?

2) dates that payments were sent/received

3) exactly how much you have paid in total

4) any extra charges etc

 

check your credit file and see what it throws up

 

do you have any default notices and are they correct ?

 

The bank will delay sending out any paperwork,so you need to ask for a response by a specific date and as the royal mail are going on strike ask them to send replies to an email address.

 

You might have to number questions are they not very bright in my opinion.

 

try not to work to hard

[George1958]

To Ida, Monty2007, and RHood

 

Many thanks for your postings/replies, i will look more closely at things when I get back tonight.

 

Regards

 

George

[IdaInFife]

thanks Monty

 

ida x

[George1958]

I am lodging my Form 07 in person at the designated Sherriff Court, then just wait for the Form G5 to arrive, which I will then post up.

 

I had asked for all documents attributed to the overdraft to be made available for my perusal in early August, however as usual nothing arrived. This leads me to my next couple of questions.

 

As overdrafts are not covered by the CCA am I entitled to ask for a copy of a properly executed regulated agreement?

 

or

 

Do I just make a Subject Access Request using the Data Protection Act with an enclosed £10 postal Order?

The Subject Access Request letter will be suitably amended to insist upon copies of the original properly executed agreements, and not reconstructed copies of agreements.

 

Again many thanks to all for the very relevant and helpul postings both now and in the future.

 

Kind regards

 

George

[seriously fed up]

Subject Access Request, as I understand it, should require them to produce within 40 days everything they have which has got your name on it, so assuming the agreement has your name on it (and if it didnt you wouldnt be the place you are now) I would think it would get you the documents you are looking for.

The problem is that they have 40 days to do this, and often take a good while longer, and its not much use if it rolls in after the case has been heard.

You might be better thinking about using court procedures. I think the process to use is called an "Incidental Application". There is a good discussion of this process here http://www.consumeractiongroup.co.uk/forum/scotland/173207-equivalent-cpr-31-16-a.html. I note that Monty was a party to this, so he might care to elaborate, particularly as he will know more about this than me.

But, as I see it, if you make this type of application the problem is that you will in the first ilnstance have to convince the court why the documents you say you need are significant to your case (eg you are not just fishing or delaying).

BUT, if your application is successful, their release of the documents will become part of the process of the case, so, for instance, you would be able to argue that as you dont have the documents yet, you cant prepare a full defence and the case shouldnt proceed. The fact that the application has been approved by the court should at least put them on the back foot in such a contention. At best, if they dont come up with the documents you want, the sheriff might get fed up with them and throw the whole case out.

However, I would wait for Monty to come by and advise on incidental application. He has experience of using it and can give you much better guidance than me. But I would certainly think about it.

[Monty2007]

Thanks SFU, good comments with which I agree.

 

I have just won a small claims action in Scotland against HFC and was unable to get much of the documentation I needed despite serving two Incidental Applications. When I complained at the first hearing the Sheriff told me that they should supply any documents that they seek to rely on but are not compelled to do so before the leading of evidence. His actual words were:

 

"Where in the small claims rules does it compel me to have them comply with your request?"

 

I was therefore left with the impression that IA's are of limited use but worth serving IF the case get's to leading evidence since you can point to your formal request for documentation. On the plus side the Defender can simply provide a defence where he denies all the claims made by the Pursuer so the Sheriff is compelled to have both sides lead evidence.

 

The game that is obviously played is that they serve an application form as their proof of contract and are essentially presenting this as the agreement. In my case I pointed to the fact that I did not have any agreement with HFC but had "some dealings" with John Lewis Financial Services so they withdrew. I got costs but they may come back..........

 

I think a SAR is more useful but serving both is a good belt and braces approach.

[seriously fed up]

belt and braces is almost always a good idea.

[George1958]

Thanks for your posts SFU and Monty2007.

 

I went up to Citzens ASdvice Bureau this morning, and they said I should consider the Debt Arrangement Scheme (DAS).

 

Does anyone know of the Scheme? It seems to stop the court action in it's tracks, but I'm not sure what the pitfalls are.

 

However, recent news events about irresponsible lending by the banks could not have happened at a better time for me, especially as the RBS extended the overdraft when the company had effectively ceased trading with no transactions going through the bank account.

 

So now I'm in two minds whether to meet RBS head-on or consider a DAS. At the end of the day I spent most of the money, so I really want to pay it back, but there is close to £8K in charges applied to the overdraft as well which I am loathed to pay back.

 

Monty, Ida and SFU if i need your specialist advice is it ok if I PM you all when I post?

 

Regards

 

George

[IdaInFife]

heres a link to DAS info,

 

National Debtline Scotland | Debt Advice | Factsheet 22 Debt Arrangement Scheme

 

ida x

[JonCris]

Scottish debtors should know that ALL lender claimants must now include ALL the necessary documentation, including true copies of the CCA, when submitting their application to the court

[IdaInFife]

no they don't, not yet anyway

 

 

not due until 1st dec after the 'debate' next month

 

id x

[JonCris]

Really that explains why they are all rushing to court now

[IdaInFife]

i think we have been expecting it

 

ida x

[seriously fed up]

to be honest I have no experience of DAS. In my darkest moments about a year ago I was thinking about an IVA, but no one - not even CAB -mentioned this.Perhaps practitioners dont make as much out of it. But I have never heard of it so I dont know.

The one complication that I might foresee is just what is your debt George. Does it include the 8k in fees that you mentioned. Bet your life, they will consider that to be part of the debt. That doesnt mean dont go for DAS, but to recognise that this could be a complication.

The other possibility is to allow the court action to go on as you had reckoned on before, with the possibility that you might lose.But even then, given the debt was unsecured, I dont see a sheriff ordering you pay more than you can afford - or put another way, a sum equivalent to what you would be paying under DAS?

Its your call mate. Do you want the stress and hassle of the court case going on, but with the possibility that you might win and at least have the possibility of dealing with the matter on your terms? Or do you want to go down the DAS (or similar) route - less hassle and payments that you can make (though possibly including the charges you dispute). All depends on what's important to you.

Yes quite happy for you to pm me if you think I might be helpful, but you have to heavy weights (at least in informed opinion ) in Ida and Monty

[George1958]

Hi JC

 

I had that thought myself, so now I'm considering the Debt Arrangement Scheme to halt the court action against me for at least 6 weeks.

 

Then I should be passed the 1st December date, and have given myself sometime to gather thoughts and some intel to construct my own action against RBS.

 

In the army the order to "fix bayonets" focused attention to the task about to be undertaken.

 

Maybe I'll resurrect that order to include my own charge against RBS and get out of this trench, the old uniform is now a bit tight but the buttons are shining brightly again.

 

Right lads and lassies "Fix bayonets"

 

Regards

 

George

[seriously fed up]

yes, even buying 6 weeks would be useful.

[RHOOD]

George is the £8k just charges or charges plus interest?

 

bayonets fixed, as they dont like it up em Mr Mannering

[George1958]

And so the battle commences.

 

I have attached a "timetable" from the court, and again any advices would be gratefully received how I should lodge a defence.

 

Where does all the time go? It's difficult to believe I've been away for so long.

 

Regards

 

G

 

Court Letter 1 edited.PDF

[George1958]

Good Evening All

 

The last few weeks have been rather frenzied and have flown by too quickly for my advancing years, working away from home hasn't helped either.

 

I got home today to find this letter from RBS on the floor, please bear in mind that they have started legal proceedings against me, I quote these two paragraphs from the letter.

 

"I am sorry the Bank is unable to provide a copy of any signed overdraft agreement in relation to overdraft facility on the Business Current Account.

 

There is not always a requirement for a signed agreement in respect of an overdraft facility as such facilities can, for example, be agreed over the telephone. The terms and conditions of any agreed overdraft facility are confirmed in a standard document. Unfortunately, I have been unable to locate a copy of the document issued to the company confirming the terms of operation for the previously agreed overdraft facility"

 

I know that a copy of the documents may be found at some time upto the hearing, but this letter allows me to show that the documents may not be original and be of a Mickey Mouse quality.

 

I am of the opinion that the above paragraphs are priceless and will form a valuable part of my defence in the legal proceedings RBS have started against me.

 

Any comments would be greatly appreciated.

 

Kind regards

 

George

[Monty2007]

Hi George

 

You have posted up the schedule but blanked out the dates?

 

You need to submit a defence. can you post up what the writ states in the various sections.

 

A defence can be as simple as "denied" to each of their numbered sections or you can present an argument. Do you have any recollection of signing an agreement for the business overdraft?

 

I personally have no expertise of overdraft issues, I can help you with the defence and process of someone can help with the legal arguments of your case.

 

Regards

 

Monty

[George1958]

Good Evening Monty2007

 

I posted the writ on 18 October (Post No 30).

 

It seems at this point in time I can present arguements, but I don't know if that is bravado or foolishness on my part.

 

To be honest, I can't remember signing anything other than a legal waiver at the time.

 

I know the CCA does not apply to overdrafts, but I think that I can argue my case that since they (the RBS) have started Guarantee Call UP proceedings my status can change to that of a consumer.

 

Your offer of help to with my defence letter is greatly appreciated.

 

I would however like to have an attempt at the initial draft and perhaps post the draft to allow a critique to be formed.

 

Kind Regards

 

George

 

[seriously fed up]

I couldnt really add to Monty's post George.

 

I think he has made the main points (as I would, as the only defence I have written up was my own, and that with Monty's tutelage).

 

As Monty says you need to take every point/ section in the papers they have served on you, and either admit (yes), deny (no), or admit with justification (yes, but ....).

 

My own thread - re M&S (http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m.html)

 

might help to illustrate the process for you, as I have posted there the court papers served on me and, later on, my defence.

 

you should be able to see the connections between the two sets of documents (though the actual content from your point of view is quite irrelevant).

 

In terms of content, every defence is going to be different - its a bit like we have to follow the same story template, but the story will differ.

 

Like Monty, I really dont know anything about overdrafts, but a couple of points

 

a quick search turned up this thread - http://www.consumeractiongroup.co.uk/forum/general/98190-what-law-act-covers.html-

 

see in particular Maroondevo's post at the end which suggests that the Consumer Credit Act does have some oversight of overdrafts

 

In particular there, see Scott's observation that

 

"The credit agreement would be in the form of a letter from the bank stating the amount of credit, the APR, charges and cancellation rights.

 

This type of agreement would not be signed by the debtor."

 

If this is correct - and I have no reason to believe that it is not - then, following the statement you have highlighted in their letter to you, it would look to me as if they have a problem.

 

You MIGHT want to think about an Incidental Application to the Court, to the effect that this document is critical for your defence and asking the court to order them to come up with it.

 

Alternatively, you might put in your defence, go to court and bring this to the attention of the court then.

 

Whether the Consumer Credit Act applies or not, it would seem extraordinary to me that a lender could simply assert that "there is a loan" and that this is supposed to be sufficient.

 

Are we really suggesting that, for instance, I could get court papers alleging that 6 months ago I made a phone call and now they want their money back?

[Monty2007]

Hi George

 

Found it, I do remember reading this a few weeks ago. It is a simple writ and should be responded to in a similar fashion.

 

You need to respond to each of their Condescendences in turn, failure to do so means that you admit it. It is interesting that in No 2. they refer to "a loan" hence they will need some documentation to demonstrate the contractual nature of this arrangement, hence you need to refer to your request for disclosure of documentation.

 

At this stage it is worth keeping it simple. You will need to send a copy of this to the court and also to the Pursuer. Before the options heaing you will need to file a Rule 22.1 Note which allows you to rely on your prelimiary pleas within your defence, otherwise they are repelled by the Sheriff. The adjustments phase allows both sides to modify their respective positions and is meant to remove areas of dispute and focus in on the key are(s). In your case it will obviously be the agreement, written or otherwise.

 

Suggested Defence which can be modified during the adjustments period:-

 

-------------

 

Court Reference Number: xxxx/xxx

 

 

 

SHERIFFDOM OF XXXXXXXXXX AT YYYYYYYY

 

 

 

DEFENCE

 

in causa

 

Their details

 

PURSUER

 

 

against

 

 

Your details

 

DEFENDER

 

 

 

1. This is admitted

2. This is denied. The Defender has requested that the Pursuer provided documentation in order to support their claim in relation to the contractual relationship that exists between the Parties.

3. This is denied.

 

 

 

PLEAS-IN-LAW

 

 

1. The Pursuer’s averments are irrelevant et separatimlacking in specification, the action should be dismissed.

 

2. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

 

In respect whereof

 

 

Signed .................................................................

 

 

Date: xx November 2009

 

Your details

 

DEFENDER

..................

 

Good points SFU. I think that there are some defences about in relation to overdrafts and this is worth defending.

Edited November 6, 2009 by Monty2007
numbering went wrong