RBS Ordinary Cause Citation - old Business Loan With Personal Guarantee

[George1958]

Monty and SFU

 

Thank you both very much for your posts.

 

There is a wealth of information here, and I really think that RBS have not done themselves any favours with that letter.

 

I didn't even see the words "a loan" in the writ, and I thought I was adept at reading between the lines. The anomaly was there all the time staring me in the face.

 

I've lost count of the amount of beer I have to buy!!

 

Thanks again

 

Regards

 

George

 

[Monty2007]

 

No problem George.

 

The Scottish Civil litigation process is very fair but appears slow, in effect it allows you time to plan and resolve issues.

 

The first stage of adjustments is a cat and mouse affair, with each side making adjustments to their respective positions and pleas.

 

Remember that when you submit your defence that the following adjustments phase is between you and the pursuer only, you don't copy the court.

 

The Pursuer is responsible for submitting the final Record which will be reviewed by the Sheriff at the Options hearing.

 

Remember to submit a Rule 22.1 Note before the Options hearing such that the Sheriff will almost certainly be directed toward a legal debate given the substantive issue is the contractual agreement and its enforceability and/or terms and conditions which you were bound.

 

At the Options hearing you will need to make a motion at the bar (i.e. in person) where you will formally request a copy of the loan documentation that they purport exists between you and which they seek to enforce. We can bring it in with the defence adjustments so they may think again.

[George1958]

Hi SFU

 

Found the thread, which was started ove r 2 years ago.

 

Many thanks for the pointer

 

I've done a wee bit of thinking through the night and I am still of the opinion that the letter from RBS is going to be priceless.

 

It's funny how things turn around, but I have a feeling that the case may be dropped by RBS because of this letter, and as strange as it may sound, I would at this point in time prefer it to go ahead.

 

Therefore, I see myself as having 3 options

 

1) The case is dropped and the status quo resumes, ie, I pay the alleged amount back over 6 years.

 

2) I raise an Incidental Application to force RBS to make available all documents, which is a nicer and softer option.

 

3) I submit a counterclaim on the strength of the letter, stating that there are no documents to support this alleged debt. Should documents eventually be produced by RBS I can then accuse RBS of conjecture by submitting what appear to be reconstructed and reconstituted documents. This option is playing hard and hitting them with a bigger hammer than the one they have been hitting me with.

 

Being a realist I expect that my argument is simplistic and would easily be countered, therefore I have attached the letter in it's entirety, obviously I have removed names etc.

 

Could someone please tell me if I am barking up the wrong tree.

 

Please bear in mind that also this letter is the the bank's "final response" to my complaint via the FOS.

 

I honestly think RBS may have a problem.

 

Got to go now, off to the Remembrance Parade.

 

Regards

 

George

RBS Letter 2 - Edited.PDF

[Monty2007]

 

Hi George

 

You may well be able to negotiate a settlement with RBS, and have a good chance of doing so from what you have posted. However you will still need to defend this action until such settlement is agreed.

 

Getting the data from the SAR will be useful. The problem with Incidental Applications is that they are not strictly enforced and conformance can be strung out by the other party making numerous requests to deliver, as I and many others have found out. They are worth serving though since when/if evidence is led then you can point to your request and nail them at that point.

 

How much is the writ for?

[George1958]

Good Afternoon Monty

 

Thanks for the reply and guidance.

 

I am going to lodge my defence a day or two before expiry of the given date.

 

Should I serve an Incidental Apllication at the same time or wait until the given date for making adjustments to the Writ or Defences?

 

Also, what happens if RBS dont want to continue with the case but I want to continue?

 

The writ itself is for a little over £30K.

 

Thanks again Monty

 

Regards

 

George

 

[Monty2007]

 

Ok, this is an Ordinary Cause action so the rules are different to that for a Summary Cause or Small Claims.

 

You cannot serve an Incidental Application for an Ordinary Cause, document request has to be done through a motion, served via a solicitor or Bailiff.

 

Alternatively you can serve a "motion at the bar" when the case next comes before the Sheriff at the Options hearing. You need to structure your defence such that the "loan agreement" becomes the substantive issue and the basis that are trying to enforce.

 

I have been through one Ordinary Cause case, they can get complex and I suggest you get hold of a copy of Civil Procedure and Practice by Charles Hennessy, see

 

Civil Procedure and Practice by Charles Hennessy (9780414017511) - Books at Borders

 

 

It gives a very good overview of the Ordinary Cause process and what you can expect.

 

One consideration that you have to note is that there are no limit on costs like a small claims or Summary Cause action. In addition the process is more formal and there are specific rules with respect to documentation and structure, not incredibly difficult but you have to watch out for the subtleties.

 

You have the dates for the return of your defence, adjustments and Options hearing.

 

When did you serve your SAR?

[George1958]

Evening Monty

 

SAR was served 06 July and sent registered post with a £10 postal order, for which I can't find the counter-foil for. I need to look in other places, I thought I had clipped it to the SAR service but obviously not.

 

Here is a list of some of my activity in chronological order

06 July SAR served

30 July "Failed to Respond" letter sent

12 September Complaint sent to FOS

 

Getting back to Ordinary Cause, I read somewhere this afternoon that an Incidental Application did not apply to an Ordinary Cause, and I was going to post a question if indeed that was correct or not, but as usual Im too slow off the blocks and you've answered it without me asking.

 

My options hearing is not until end of January 2010, however my last date for adjustment to the Defences is early(ish) January 2010.

 

Therefore, do I keep the "final respnse" letter from RBS under wraps until the Options Hearing, but request the relevant documents before the last day for making adjustments to the Defences.

 

Do I still need to serve a Rule 22.1 Note?

 

Last question for tonight. In a recent post you said I need to send a copy of lodging of defences to the pursuer, would that be to the solicitor for the pursuer or to RBS? Hopefully it will be to RBS as they are named in the writ as pursuer.

 

Finally, I'll go and get that book tomorrow from Borders.

 

Many thanks again Monty

 

Regards

 

George

[Monty2007]

Dear George

 

You will need to disclose the RBS letter as part of your defence and it will have to be included within your "First Inventory of Productions" along with any other documentation that you seek to rely on and use should the case get to a legal debate, proof or proof before answer (PBA). It is the same for the other side.

 

When you lodge your defence, you send one copy to the court and one to the Pursuer or their agent, they will be detailed on the initial writ (summons).

 

There is then the period of adjustments to the writ and defence as you know, just between the parties and not involving the court.

 

 

Three days before the closing of the Record you need to lodge a Rule 22.1 note with the Court and send a copy to the Pursuers (best to do it earlier), this will prevent your prelimary pleas being repelled at the Options hearing and the Sheriff will almost certainly direct a legal debate which is in your favour, even if one party wins the legal debate you then get a second chance at the proof or PBA. You will get to see this when you read the relevant parts of Hennessey.

 

They will be responsible for compiling and submitting the final written Record from which the Sheriff will direct the next stage at the Options hearing. Again you can use any calling to present a Motion at the bar.

 

IMO your strategy has to be to direct the legal argument to the purported agreement that exists between the parties and getting the RBS letter is key for your defence as you mention.

 

The relevant part of the defence and pleas can be structured to nail them firmly to the wall on this. Keep it simple but include all their tricks and underhand ways they have used to try to stump you.

 

Their non-compliance with the SAR is worth putting in your defence since it shows that they have not complied with a Statutory legal request under the Data Protection Act, indeed you could consider a counter claim based on their non compliance.

 

As I found out and used to my advantage, getting every single piece of evidence well structured and positioned can work wonders, I had some great advice and direction from BRW and it really is about the detail and going for it.

 

Hennessey is a good read, you will see it is not that complex and I can help with the documentation and try to address any of your questions. If I don't know I will say so, there are some good books in the Mitchell Law library in Glasgow that go into great detail on the process and Ordinary Cause Rules, the court Clerks can also be very helpful.

[George1958]

Hi Monty

 

For now I'm just going to lodge my defence, which will be very much in line with one of your previous posts. However in addition to denying Condescence#3, should I also add that I am in a Debt Management Plan administered by The Consumer Credit Counselling Service, who are a recommended body in the Banking Code?

 

I have made up my mind about counter-claiming, all I have to do is consider when the best time for doing so.

 

If the pursuers withdraw before I counter-claim, have I then lost the chance to serve a counter-claim?

 

Sorry Monty I seem to loading all these questions on you.

 

Kind regards

 

George

[Monty2007]

 

No problem George, happy to help. You would have to submit your counter claim within your initial defence so that the other side can present a defence to it.

 

The Pursuer's can withdraw their writ at any time but if you counter-claim then this will stand and progress through to proof/PBA. I am not sure what happens to costs in this scenario although if you decide not to continue then I am sure you would be awarded costs.

 

The debt management plan is worth stating, have you breached this in any way? Have you any documentation to support this?

[George1958]

Hi Monty

 

I've ordered book via LTP (dont ask) it seems I'm getting delivery tomorrow.

 

I can confirm that the DMP has not been breached,and that all repayments are upto date.

 

I will post my lodging of defence when prepared.

 

Thanks again Monty, your advices are greatly appreaciated and invaluable.

 

Keep well

 

George

[RHOOD]

Hi George,

 

I take it you got some LUCKY WHITE HEATHER (post 3) as the bank seems to be making a mess of it all with their letters.

 

Dont think you will see a Court room this year as they will pull out - expect forms G6,G7 & G9 rule 15.2(1) Form of Intimation of Motion.

 

All the best

 

RHOOD

[George1958]

Good evening all

 

I've decided to bit the bullet and post my defence for all to see. As Rhood states maybe there is some other poor down-trodden soul out there who can learn from my experiences.

 

In my defences I have listed counterclaims also, but as usual the protocol may trip me up.

 

Therefore all help and guidance will be greatly appreciated.

 

The defnces don't need to be lodged until the end of next week. but due to work commitments they need to go on Monday.

 

Keep well and kind regards

 

George

Lodging of Defences 2-Edited.doc

[Monty2007]

 

Dear George

 

The draft defence you have posted up is not in the correct format and may cause you problems. The defence needs to address each of their numbered condescendences and you should detail any case law, reasons etc within each.

 

The counterclaims you list are interesting, I am not sure they are relevant since they do not specify what loss such alleged action has resulted. What remedy are you seeking?

 

It is your call but you will have to stand up and defend it so need to be armed with the relevant legislation and proof of loss (or damages) that their action has caused you. So take care here. The best quote I had from a Sheriff was:-

 

"Exactly where does it state in the OCR rules does it allow me to have them comply with your request?"

 

Hence you need to stick to facts that you can substantiate and quantify in terms of damages.

 

You don't use the CCA at all?

[George1958]

Thanks for replying Monty

 

I think in my case a little knowledge is a dangerous thing. My problem is that I've had so little time to do much research.

 

It would be so handy if I could get hold of some templates or examples of layouts of defences with counterclaims.

 

With regard to the relevance of the counterclaims I admit to throwing emough mud so that some of it will stick, and I knew that I would have to refine the final draft.

 

To be honest I did think about just one conterclaim essentially stating that I find myself embarrassed to be in this position due to the negligence and intransigence of RBS, but I thought that might sound a bit soft.

 

My main driving issue is that I want things to come to a head one way or the other. What does bother me most is RBS dropping the case but reserving the right to hit me again with the big stick.

 

Am I correct in stating that a counterclaim will force things to a head?

or

Can I object when the Pursuer decides to drop the case but reserve the right?

 

Referring to setting out, I thought I had followed the guidance below.

 

On page 228, near to the bottom, of Charles Hennessey's (CH) book it gives an order.ie

1) a crave setting out what is being counterclaimed.

2) the defences to the original action in the standard form responding to the pursuer's pleadings.

3) a statement of fact relating to the counterclaim, ie, explaining the basis on which it arise and the facts on which it is based.

4) appropriate please in law which will be a combination of pleas in law directed at the pursuer's claim against the defender and pleasein law in support of the counterclain itself.

 

Therefore should I have given a title to each section of my defence such as,

1) Counterclaim

2) Defences relating to each article of condescendence in the initial writ.

3) Statement of fact relating to each counterclaim.

4) Pleas in Law

 

or should I just concentrate on my defences and forget the counterclaim?

 

Finally you mentioned "You don't use the CCA at all?" at the end of your post. I did swither to put it the "Defences to the condescendence" but I thought I may have overused it elsewhere in the document.

 

Once again I'm sorry for loading all these questions on you.

 

Many thanks

 

George

 

[RHOOD]

Goerge,

Is next week just the date for Lodging defences or is it the LAST DAY FOR MAKING ADJUSTMENTS TO THE WRIT OR DEFENCES ,

 

If it is the first, then put in Embarrassed defence Ive e-mailed you my copy to "HM" email address let me know if you can open it & read it.

[George1958]

Good afternoon RHood

 

That was just the last day for lodging defences.

 

My last day for amendments is early January 2010.

 

I had a complete re-hash of the defences before sending them in, just now got to do an awful lot of reseacrh between now and then.

 

Regards

 

George

 

 

[Monty2007]

Dear George

 

The final "Record" will look very different as they make adjustments, be prepared for them to make their adjustments right at the very end such that you don't have a chance to respond. Hence it is important to get your Rule 22.1 note in on time.

 

If/when they play this trick (as in my case) you then simply turn up at the options hearing and lodge a request for an extension for this very reason. I am afraid it is a consequence of the system but an easy one to deal with once you know the game............which is what it is.

 

Let us know if they make any adjustments to their writ or pleadings. Remember that you respond to them only and not the Court, they will also submit the Record. The R22.1 note goes to the Pursuer's agents and the Court.

[George1958]

Good evening Monty

 

I submitted my defences today, well I would have if the office was not closed for a training day. So I sent them Guaranteed Next Day Delivery to the court, and Ist Class recorded to the pursuers solicitor.

 

Therefore everyone will be happy bunnies tomorrow.

 

I reduced my counterclaim to one, and expanded on the statements of fact, it seemed to be a case of repeating myself a little bit, but I just wanted to cover all the angles.

 

With regards to an R22.1 Note, is there any specific format or statement I should make?

 

I have no doubt that the final record will look very different, but should they try and produce documents at any stage I will question the authenticity of these documents using RBS's letter as the door-breaker.

 

I will let you know of any developments, but sometimes I am very wary of snoopers looking in and putting 2 and 2 together. At the end of the day it wont be very hard for either RBS or their agents to find this thread, it's even on Google.

 

Thanks again

 

George

 

[Monty2007]

 

The Rule 22.1 note is very simple. I will post up one for you.

 

RBS will note be able to trace you, and so what if they do. You have a good case.

 

Rest assured, they are not worried about the money, this is a drop in the ocean to them. It is the potential precedent that any victory against them will set, so if they think for 1 microsecond that you have at least a chance of winning then they will withdraw PDQ. This was a superb analysis given to me by BRW (CAG member) that was just the correct call in my case.

[George1958]

My concern was that by using the forum that they get tipped off and have more time to head me off at the pass, but you're right I am small fry and have just been roughed up a wee bit.

 

Them withdrawing would be nice, but I dont want them coming back at me again and would like them to admit the debt is unenforceable or get the sheriff to tell them the debt is unenforceable. However, I realise that people need to save face and perhaps a full and final settlement may be the deal-breaker.

 

As soon as you post up the R22.1 Note format, I'll get one of quite sharply just to indicate to the big guy that the wee guy is not going away.

 

Thanks again Monty

 

Regards

 

George

 

[Monty2007]

 

Hi George

 

The Rule 22.1 note is attached, very simple but ensures that you pleas cannot be repelled. You may wish to wait until the last few days since you may want to change your pleas depending on the adjustments that they lodge. They will know you are serious. Part of the game is making you sweat so don't play into it.

Rule22.1note.doc

[George1958]

Thanks Monty

 

I have saved the R22.1 Note, and will submit within the last few days.

 

Personally speaking, I feel a bit of sense of relief getting my defences in as it was so short a time between receiving the G5 and posting them.

 

Now I feel I have time to research more, instead of taking the easy option and asking the same people all the questions all the time.

 

Many thanks

 

George

[Monty2007]

 

Hi George

 

There is a lot of time between events in the Scottish process and it can be frustrating. I went through the same process and kept thinking that there was more to it............

 

Yes, you have a lot of time to read around and DO ask lots and lots of questions, I will certainly not be able to answer them all but will help where I can.

 

The Options hearing will be useful if you have not been to court before, it is a non event in these cases since the Sheriff will almost certainly direct a legal debate given the R22.1 note.

[RHOOD]

 

MONTY/GEORGE

 

I dont think George will even see inside the Court room as in my case when you defend with the TRUTH AND FACTS the solicitor pulls out after amended defences have been put in.;-)

 

Why take somebody to court when they are already paying the debt,in a case they might lose.

 

George's Writ was just a bog standard Writ "Defender refuses to pay etc etc"

 

If RBS / Solicitor have to look at this thread to beat George then you've got them worried big time.

 

 

Dont think you will hear anything until next year George.

 

Just keep asking for info:grin:, did you ever get your SAR ?