RBS Ordinary Cause Citation - old Business Loan With Personal Guarantee

[George1958]

Hi RHood

 

I've only asked for the SAR once, and I still don't have it. In fact the "Final Response" letter stated they didnt have my request.

 

Maybe RBS and their solicitor will produce something on the day, hopefully they will and it should be easy to level an accusation of conjecture, as I already have that letter from RBS saying they dont have and cant provide original agreements etc.

 

As far as I am concerned they they stated lies on the writ that could be construed as libelous.

 

Maybe once the dust settles I'll have a go at the solicitor as well.

 

Keep well

 

George

[George1958]

Evening All

 

Just a quick update on latest events in my wee world.

 

It's now two weeks since I lodged my defences, and I have heard absolutely nothing from the court, the pursuer nor their agent.

 

I have no doubt this will change, but at least it's giving me a little time to carry out some research.

 

I will keep posting as news comes in.

 

Regards and Keep Well

 

George

[JonCris]

 

There is an internal document available which confirms that RBS DO reconstruct agreements usually with later Ts&Cs which are more erroneous for the debtor. PM & I'll tell you who can supply it

[RHOOD]

I am sure the internal document is on Paul Walton's Thread.

 

I will e-mail it to you George, I also lodged it as an EXHIBIT.

 

George you will not hear anything until after the AMENDED DEFENCES DATE when the other side will try and PULL OUT that is what happened to us they will send forms G6 G7 AND G9

 

G7 RULE 15.2(1)

 

G9 = OPPOSITION TO THE MOTION MAY BE MADE

 

IN THE EVENT OF A NOTICE OF OPPOSITION BEING LODGED the Sheriff clerk will assign a date ,time and place for the hearing parties on the motion.

 

George this will be your "homework" you only have a couple of days to reply to this to the court and as i had just started a new job I could not follow it up and get time off , passing the baton over to you to win the race.

 

Still got a faulty defualt notice will take up fight again after Christmas, might even get full SAR by then, its only been 7 months

since 1st request for it.

 

All the best

 

RHOOD

[RHOOD]

George,

 

Found memo, emailed you along with FORM G7

 

Paul's story is below

 

How trustworthy is your bank? | Money | The Guardian

[George1958]

Hi RHood

 

Thanks for the information about the forms, I intend taking this fight to the wire.

 

I do think I have a strong enough case, and also think that a full and final settlement may be a way of both parties saving face.

 

However, my opinion has shifted yet again, and I really want them nailed by the testicles to the mast of their rotten, stinking, and sinking ship.

 

They wanted a square-go so they're going to get a square-go.

 

Keep well

 

George

 

 

 

[George1958]

Good evening JonCris

 

I have PM'ed you.

 

Regards

 

George

[RHOOD]

[George1958]

Good evening RHood

 

SAR sent to RBS Head Office, which was their registered address.

 

The whole bank is a shambles. it seems to be key words in any sentence used to describe the procedures within RBS.

 

I've heard property is really cheap just now in Dubai, but alas my credit rating does me no credit at all. Just my luck eh??

 

Retards, oops meant Regards, that was me thinking about THEM again.

 

George

 

[RHOOD]

Hi George,

 

Here is an up to date list of Scottish Court Forms

 

Ordinary Cause Rules

 

regards

 

David

[George1958]

How time flies!!

 

It seems my last posting was 29 November, Ive been going hell for leather and to be honest for more than a little while I thought it was too much for me. My laptop getting stolen alomg with my briefcase didn't help, it has taken a wee while to get access again, the laptop was password protected, but some of my case files were in my briefcase.

 

Anyway, I'm now back on line, my adjustment to defences is due next week, and I have still not heard a peep from RBS nor their agents.

 

Now busy trying to make up for lost time and effort.

 

Will let you all know how it goes next week.

 

Regards

 

George

[George1958]

Evening All

 

Is this a case of speak and the devil appears?

 

I received through the post this morning the pursuers final adjustments to the writ and pleadings, along with a covering letter.

 

Almost as an aside in the covering letter was the sentence "We will be seeking a continuation of the options hearing on DD/MM/YY with a period of further adjustments."

 

Am I assuming correctly that they are giving me notice that they will make an oral motion when the case is calling?

 

Also in the adjusted writ the following atatement was inserted after each article of condescendence, even the article confirming my name, adddress and jurisdiction, "The Defender's averments in answer are denied except insofar as coinciding herewith." I take it this statement is the legal equivalent of a lifeboat on a ship.

 

The one statement that is bothering me is the extra statement in Pleas in Law is as follows "The Defender's averments in answer are irrelevant et separtim licking in specification, they should not be admitted to probation"

 

Can someone explain that statement to me?

 

Kind Regards

 

George

[seriously fed up]

George, very good to hear from you again and that you are still fighting the good fight. Whatever expertise I might have is not in procedure, but a few observations that i hope you might find useful

 

1. sending you their adjustments at the last minute is, as far as I can see, a typical tactic, as it gives less time to think out a response, especially for a litigant in person (ie not a lawyer)
   
2. continuation? Well at least they were up front about it. I have read cases where they seek a continuation as the hearing begins. What's your view? Are you "ready to go"? Do you think they have had long enough to prepare now? Do you think anything could be gained by agreeing to this? Or lost? Really a matter of tactics
   
3. "The Defender's averments in answer are denied except insofar as coinciding herewith." - they are saying that everything that you say is wrong, unless something you say happens to agree with something that they have said. Do they give any reason(s) for this view? Or is it just stated in a formulaic way
   
4. "The Defender's averments in answer are irrelevant et separtim licking in specification, they should not be admitted to probation" - your arguments are so crap that the court shouldnt waste its time hearing them. In other words they are asking the court to throw out your defence without a full hearing. Its interesting though that at the same time they are seeking a continuation. I cant imagine they are doing this to make their case weaker. Can you? In any event, its PROBABLY (please note my lack of experience here) a standard legal statement at this stage (I mean if they dont ask the question ....)
   

Hope this helps and best of luck on the big day George, whenever that might be.

SFU:)

[George1958]

 

Good afternoon SFU

 

Thanks for the input and the good wishes.

 

I played a little bit of brinksmanship with the adjustments, and hoped that they would send their's first by post rather than by Sherrif Officer. This meant I could deliver mine by hand after I had seen their adjustments.

 

It was a nice surprise for them to warn me they would seek a continuation, however I think they need to give notice of such a motion. Maybe I'm wrong though.

 

The continuation won't be in my best interest unless they spring something at the Options hearing but that seems unlikely since they are going to ask for a continuation. At this juncture I will oppose the continuation citing that it will not "secure the expeditious progress of the cause" especially as the party seeking the continuation is the Pursuer.

 

I was always skating on thin ice, my arguments were really flimsy until RBS sent me the letter stating that the cannot find any terms of agreements. My worry is that something is produced on the day with the excuse that Person A couldn't find them as Person B had them, however I have stated in my defences that any documents produced by the Pursuer will be believed and averred to be reconstructed and/or reconstructed.

 

The statement "The Defender's averments in answer are denied except insofar as coinciding herewith." seems to be a pretty standard legal statement as they even put it after the paragraph where I admitted my name and address on the writ as correct.

 

I also thought and still do think the statement "The Defender's averments in answer are irrelevant et separtim lacking in specification, they should not be admitted to probation" means that they think my argument is crap. Maybe they are right, but hopefully only the sherrif can decide that. It could even br that this is also a standard legal statement designed to scare the lay-person.

 

I find this all pretty tough going, not to mention stressful.

 

Thanks again SFU

 

Regards

 

George

[seriously fed up]

 

George ONLY the sheriff can make that decision. Their role is to ask him to make it. That is all. Did you not finish your case with "The pursuer's averments are irrelevant et separatim lacking specification, the action should be dismissed". I dont think its intended to scare - its just part of the game.

 

When they seek continuation, you might object on the basis of "how long is this matter supposed to go on for? Have they not had long enough". Following the decision at Manchester (see http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html)

 

the Sheriff might be minded to give them longer. Bear in mind, however, at Manchester the application was brought by the debtors and not the creditor (as in your case) so the burden of proof was on the debtor to prove non-compliance.

 

Therefore, the possibility is always immanent that the OC cant find the agreement today but he might find it tomorrow, so they are unlikely to declare the account to be unenforceable for good and all. If, of course, the OC is seeking to enforce and says he cant find the agreement, then that is a very different matter, isnt it?

 

Also the main application of this case concerned what a lender has to send out in response to a s78 request. In my view they have been given far too much discretion by this judgement.

 

However, keep in mind that it has nothing to do with enforcement. Have a look at the Mitchell case (you can find a copy of this judgement here http://www.consumeractiongroup.co.uk/forum/show-post/post-2264418.html)

 

to get an example of the difficulties they face when the bank isnt defending (as at Manchester) but seeking to enforce. In this case what the bank had to show was that the prescribed terms were contained in the agreement signed by the debtor.

 

Thus BoS were actually in a stronger position than RBS, as they at least had a signed agreement. What the bank had to show was that the prescribed terms were embodied in the agreement signed by the debtor. Unfortunately the case never got a to a full hearing, BUT

 

1. this was because the bank withdrew at the last minute
2. I think it you read the judgement (esp para 9) you will see the likely reason for their withdrawal - they knew or strongly suspected they would lose.
3.  

If they do come up with the documents on the day - without having disclosed first, you MUST at that point seek a continuation. They are presenting very significant new evidence and you have to have the opportunity to consider it.

 

And if they seek to suggest that reconstructions are ok on the basis of Waksman's judgement, remind them that Waksman was only ruling on s78 (see para 234 at Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009).

All the best again.

SFU:)

*

[George1958]

Good morning SFU and All

 

Thanks for your latest posting SFU, all this working away from home and stopping for one night to deal with my mail/post is a nightmare. My confidence is already low and continues to ebb.

 

My case is to be heard next week, and I have a letter from the Pusuer's Agent telling me that they will oppose my R22.1 not as it does not comply with the requirements of Chapter 22 of the Rules.

 

Their R22.1 Note is very concise, and even has the statement "The underlying agreement is a matter for the principle debtor, not the defender, therefore the averments anent the overdraft facility are irrelevant and should not be admitted to probation."

 

So bearing in mind that the letter from the bank in a final response to my complaint via the Financial Ombudsman states they cannot locate any documents or terms of business, am I correct in assuming that the solicitor is saying that any agreement applies to the bank and not to me.

 

To finish off for today I also have a copy of the Closed Record. So it looks like I'm going to be in court soon.

[seriously fed up]

I THINK what they are saying is that the agreement was entered into by your partner (and thus would be the principal debtor), and that you stood as guarantor? Is that correct - ie it was your partner who signed for the overdraft with you as guarantor? I think this is what you said at the outset of all this.

If this is the case, it looks to me (and I have no expertise in this at all) that what they are saying is that your complaints about the overdraft facility have no relevance as you were not a party to that agreement - you only guaranteed it. Bit like, your son buys a new car with you as guarantor. He defaults on the loan, which (lets say for now) is not consistent in some way with the Consumer Credit Act (missing prescribed terms maybe), and so they come after you as the guarantor. Now if this were the case, the problem for them would be that they are seeking to call in a guarantee for a loan that cannot be enforced against the principal debtor (your son in this fictitious example), so why should you meet your guarantee, and pay to an unenforceable loan. By extension the same thing could be said to apply to the case you are dealing with. Your partner took out an overdraft which they cant enforce (they dont have the letter), so why should you meet the guarantee?

I would

 

1. question whether they have sought to enforce against your partner? I would guess not, as if you dont know where he is, the likelihood is that neither do they
   
2. if they havent sought enforcement their defence will likely be "cant find him". Is that acceptable? I would guess it probably will be for the court (this doesnt rule out that they know perfectly well but that they wont get him to pay up so they are trying their luck with you. But, without further knowledge, it would be hard to prove that)
   
3. question whether if they had sought to enforce it against your partner, what would their chances of success be? If they dont have the letter then I would have thought pretty small. Thus the agreement being unenforceable, can they enforce a guarantee signed for it. Can you enforce a guarantee for an unenforceable account, if you see what I mean?
   

The problem is whether the court will allow you to plead this, and that is way beyond me. Certainly it looks as if they will try to have any such pleading ruled out of order, but I would very much hope that a court would at least allow your argument to go forward.

HOWEVER George, this is way beyond my expertise, and I would maybe pm Ida/ Monty/ RHood/Maroondevo - and it could be beyond them. You really need someone with experience of this kind of case.

I am really puzzled by this one. TO ME, this seems a pretty desperate move on their part, but I could be 10000% wrong George, so you MUST get other advice.

[George1958]

Hi SFU

 

I think the principle debtor is my old now-dissolved company, and that is probably why they cannot reach the principle debtor, so then they come after the guarantor who just happens to be me.

 

I can only hope that the sheriff allows me to put my argument forward, about that no original agreements nor documentation can be located, these are the banks words in a letter to me.

 

It does however seem that they are playing "hard", I hope that is only designed to scare me off.

 

Thanks for your help SFU it is appreciated.

 

Many thanks

 

George

[seriously fed up]

No bother George - glad you found my ramblings helpful.

Not sure its necessarily bad news. it might be the only way they can see to stop you - ie if the account is indeed unenforceable against the principal debtor, can they enforce against the guarantor. Hardly seems just - but what's that got to do with it? (Deathly laugh follows!)

I would seek out wider advice - I really would - as many of those who were helping out at the end of last year. PM them.

[George1958]

Good Morning All

 

My Options Hearing is early next week, and to say I'm getting twitchy is an understatement.

 

There is now nothing more I can do, I've done nothing wrong neither legally nor morally, however that doesn't stop the process.

 

If anyone can offer some advice, guidance etc on what I should expect at the Options Hearing then that would be really appreciated.

 

For example, what do I call the Sheriff? Is it guided by gender, eg Sir or Madam? Or is it guided generically,eg "Your Honour"?

 

Is there a procedure for an Options Hearing?

 

Is there likely to be a moment when the Pursuer will slag my attempts to defend myself?

 

Will the Sheriff be understanding about me being a party litigant?

 

Will the Sheriff be a Jambo?

 

Regards

 

George

[George1958]

Good Morning SFU

 

Thankyou for your input, as always it helped to boost the sagging confidence levels, and bolster the old, and getting older resolve.

 

Regards

 

George

[Monty2007]

dear George

 

The options hearing is relatively short and straightforward. The Sheriff will read the closed Record and decide on one of three options with respect to the next step which could be (i) a legal debate which is likely where there is legal arguments on agreement(s) (ii) a Proof (hearing of evidence) or (iii) a proof before answerw which is essentially the same as (ii).

 

In my case he directed a legal debate but it never got that far. I would always opt for the legal debate since it has to be followed by a proof or PBA.

 

Did you submit a Rule 22.1 note?

[George1958]

Good Morning Monty

 

Nice to hear from you again.

 

The R22.1 Note was hand delivered to court and to the Pursuer's Agent. Although the Agent did write me a cover letter to say they would oppose my motion for debate as the R22.1 did not meet the provisions of the OCR.

 

Hopefully, it's a scare tactic, and that only the Sheriff can decide if it meets the provisons of the OCR or not.

 

They have also sid previously they will ask for a continuance.

 

Regards

 

George

 

[Monty2007]

 

They are talking nonsense, the Sheriff does not have any flexibility at the options hearing other than to direct the case to one of the three options I stated above.

 

The Rule 22.1 Note ensures that your pleas are not repelled and this is your intention, irrespective if there are any minor mistakes on the R 22.1 note (which there are not). They have no powers to request a discontinuace so it will continue to legal debate, proof or PBA. The OCR process is cast in stone.

 

If they try any nonsense in court remind the Sheriff that you are a party litigant and that the Pursuers are trying to intimidate you.

 

Don't let them rattle you. Did you get a copy of Hennessy's book?

[George1958]

Dear All

 

Got to sign off now, as I have reams of documents to print.

 

I will be back on line late afternoon/early evening, no work till the Options Hearing Woo Hoo!!!

 

Regards

 

George