RBS Ordinary Cause Citation - old Business Loan With Personal Guarantee

[seriously fed up]

Monty, I hadnt picked up initially that George is being pursued as guarantor of the overdraft, so if the overdraft isnt an enforceable agreement, can he be pursued as guarantor of an agreement that they cant enforce against the principal debtor because they lack a copy of the agreement? See my first post on 20th January. I would have thought not - but overdrafts arent my thing

Edited January 24, 2010 by seriously fed up

[Monty2007]

 

Dear SFU

 

I think you have a point, without an enforcable agreement they are will have great difficulty enfocing this. I suspect this is why the Pursuers do not want this to go to legal debate which I am 99% sure the Sheriff will opt for given it is a complex legal argument based on a disputed contract.

 

I will have to re-read the whole thread since I have been away for a while I cannot recall all of the detail.

[seriously fed up]

Yes, that was my feeling as well - deal with the problem of no enforceable agreement by getting the case thrown out without debate. But he needs to be ready to deal with that one.

If they are going down that road and he can deal with it this time round that could be the end?

[George1958]

Hi Monty and SFU

 

I have a copy of Hennessey's book, and also went to my local library and ordered and obtained a copy of MacPhail's Sherif Court Practice.

 

I must admit though your recommendation of Hennessey's is never far from my side.

 

This Party Litigant status carries a lot of worry, highs and lows, and in the odd moment some excitement.

 

The Pursuer seems to be intent on going the full hog, but after reading the posts from yourself and SFU I suspect a little desparation has set in.

 

Anyway, I am in what seems to be a non-ending process of printing, editing, and re-printing.

 

All I can do now is be prepared to rebuff whatever comes at me, and retaliate with my own observations. Hopefully, I will be able to get my retaliation in first at some point.

 

Regards

 

George

 

 

[Monty2007]

 

Most of us are Party litigants and can only comment from lay experience and only a few cases too. I found Hennessy very useful since it broke down much of the mystery and gave a good introduction to the process in Scottish civil litigation.

 

About 99% of these cases never get near the court since the Defender admits or fails to lodge a defence, with the same effect. Those that are defended come as a great shock to the Pursuer's who are often found with poor documentation or having not followed the CCA, which comes as a surprise given this is thier business.

 

Remember to stick to the legal facts and arguments and follow process, if you do this with the correct arguments then a reasonable Sheriff will look after you. I was lukcy to get a few good ones, and they do change during the same action.

 

The Pursuers will employ firms to intimidate you, I had them calling me at work since they managed to track me down through a professional network!

 

Good luck!

[George1958]

Good Afternoon All

 

I had my Options Hearing today, and it was not what I expected at all. I honestly thought that we would be the only case in front of the Sheriff at that time. There was no desk for me to put my files or papers, I just had to stand there and hope that the notes in my hand would suffice for that moment.

 

Anyway I got called first, and the agent for the pursuer asked for a continuance as the solicitor dealing with this case had left the company.

 

The sheriff asked if I had any objections, of which I said, sorry it was more like I stuttered that I did. I was so nervous you couldn't have slid a credit card between the cheeks of my bum.

 

However, when the sheriff looked at me over the top of his glasses and said something like it would be better if I went with the motion, I duly did.

 

Far from feeling angry at the thought of being manipulated, I felt as though the sheriff was guiding me rather than stone-walling me. The strange thing is I cant really remember what he said, but remember more of the way he said it. He definitely seemed to be a very fair character, a bit like my old grandad really.

 

So I now have 28 days until the next time. I am now going to take a couple of days off and do nothing except unwind, well maybe the odd beer or two.

 

I was only kidding about the credit card, as no company will give me one now!!

 

I'll be back soon for more advice.

 

Regards

 

George

[seriously fed up]

OK, George, I am glad that it didnt go badly.

Did they give a reason for the continuance?

Might be interesting to see what they can come up with in the interim. But if I were you (after your well deserved days off) I would be looking for advice on the position of the guarantor of an unenforceable agreement (as they dont seem to have a copy?)

Have one for me!

SFU

[leedoe]

subbing

[George1958]

 

I have managed to beg/borrow a laptop after mine was stolen, so now I'm back on line(ish).

 

to cut a long story short, I had my day in court and due to a continuance, which was granted because the solicitor dealing with the case left the company, I have yet another day in court.

 

Can someone please tell me when I need to produce the documents on which I base my defence?

 

Do I have to resubmit an R22.1 Note?

 

Once I get my scanner linked to this borrowed laptop I intend posting the agent for the pursuers R22.1 Note.

 

I've a feeling a letter will be arriving soon from the agent for the pursuer, and I just want to be ready.

 

Regards

 

George

[seriously fed up]

Hi George good to hear from you again

I would have thought that as the continuance last month was purely on the basis of the resignation of the guy who supposed to represent them, that it would have been "as you were".

I think the advice is

 

• Remember to stick to the legal facts and arguments and follow process, if you do this with the correct arguments then a reasonable Sheriff will look after you. I was lukcy to get a few good ones, and they do change during the same action.
  
• Monty, I hadnt picked up that George is being pursued as guarantor of the overdraft, so if the overdraft isnt an enforceable agreement, can he be pursued as guarantor of an agreement that they cant enforce against the principal debtor because they lack a copy of the agreement? See my first post on 20th January. I would have thought not - but overdrafts arent my thing - I would poke them VERY hard on that one (or perhaps this is why you feel a letter might be on its way?? ) See my post on 20th January.
  
• 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? (you did, I think)
  

As I said, though, this, I would have thought, is just the appearance postponed from last month. You might of course use this wisely with some more research on procedure, how to refine you argument, maybe doing some screnario planning (if they come at me like this, I will go at them like that).

SFU:)

[George1958]

 

Many thanks SFU

 

George

[Monty2007]

You will need to submit a Rule 22.1 note if you wish to ensure that the Sheriff does not repel your preliminary pleas-in-law.

[George1958]

Good Afternoon All

 

I had my continued Options Hearing this morning, and I must admit it did not go well.

 

The pursuer asked for my R22.1 note to be replled and they were successful.

 

The case now moves to debate towards the end of march.

 

I just feel as though the stuffing has been kicked out of me.

 

Regards

 

George

[seriously fed up]

was there a reason given

 

1. by them as to why the R22.1 should be repelled?
   
2. by the sheriff as to why he acceded to this?
   

Further to this, if you have a look back at post 114 - it was Monty's - legal debate was where he reckoned this would go anyway, so it looks as if you have lost the battle of the R22.1 note, but the war - that would have been fought anyway - has still to be fought, and if they dont have the original agreement so much the worse for them

Edited February 22, 2010 by seriously fed up

[George1958]

Thanks for the reply SFU

 

It all seemed to be a flurry of words and the sheriff agreeing with the pursuer.

 

The reason given for the continued Options Hearing was that the agent for the pursuer stated that their solicitor dealing with the case had left the company.

 

Yet when I mentioned this the agent for the pursuer and the sheriff both stated it was the same solictor. Now i'm trying to figure out if this was a blatant lie or a massive stretch of the truth.

 

Roll on the end of march eh!!

 

George

[seriously fed up]

Hi George - yes it can be like that. So much for law being transparent But I assume that at some point you will get a record of today's hearing and its outcome. When you do, it will obviously be helpful to get it up here for others to comment on. In particular to find out EXACTLY what it was the Sheriff held was wrong with your R22.1. He wouldnt be the first Sheriff to get something wrong. His agreement to repel your R22.1 could well be a matter of appeal.

Re the continued options hearing, was it the same Sheriff? Is there any written record that the other side asked for a continuation because the solicitor dealing with the matter had left? They must have had to either put something into court saying this (in which case it will be in writing) or made a verbal plea to the sheriff to this effect (in which case there should be a written record again). On the other hand I am not too sure what the implications would be if they said he had left but he hadnt (I suppose they could claim he was leaving but changed his mind, or some pile of crap like that), but it would be useful to know.

[George1958]

Hi SFU

 

As soon as I've regained dome balance over this I'll post up my R22.1 Note and also the other sides. Maybe that will show where I went wrong.

 

There was a different sheriff on the bench this time around.

 

It is my intention to write/call the sheriff clerk to ask if there is a verbal record of their request to a continuance. It took all my will-power not to walk round the table and slap that smug grin off the opposition

 

Maybe all of this was the wake-up call I needed.

 

Regards

 

George

[seriously fed up]

its a record in writing you will need Geore - even if its "minutes". Something in writing, otherwise its "oh yes you did"; "oh no we didnt".

My main concern is to establish what the consequences of today will be and that's just not my "thing". Monty is the man for that - might be an idea to PM him (marking it urgent), or contacting someone on the site team (click the wee red triangle thing).

At best it might hardly matter at all and you can make your case - "where's the agreement?" and still win. But we must find out.

You wont feel this bad in a couple of days. Promise.

[seriously fed up]

Hi George - off the ceiling yet?

I thought you might find this interesting http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-80.html#post2794306 - post 1599 is the one you are looking for. As they dont have your original, this is an argument worth keeping an eye on imo.

Can you get the R22.1 up some time soon? Have you tried to contact Monty2007 to see where/why it went wrong? Remember you potentially have two bites here - at the hearing, but also to appeal that the Sheriff repelled your R22.1 note in error. It does happen!

[George1958]

Good morning SFU and to all of those subbing to this thread.

 

Sorry for not being on the forum recently, but work has been a bit of a ****.

 

Anyway here's the latest update of the saga.

 

Point 1) The agent for the pursuer has produced documents which they say are the Personal Guarantor and a Waiver of Legal Advice. Both documents are marked copy, which effectively means the documents are copies of copies and not copies of originals.

 

Point 2) These documents are dated March 2007, whilst the last accounts for my dissolved company is upto March 2004. This can be confirmed on Companies House website.

 

Point 3) The signatures on both these documents are different, the one on the Waiver of Legal Advice looks like mine, whilst the one on the Personal Guarantor does not. More importantly, I can honestly say I did not sign either of these documents.

 

The questions are now beginning to mount up and I am busily trying to make some sense of all of this, but it's very difficult as it all seems to make no sense. Yet someone somewhere has made sense of this or else it would not have led to this court action.

 

Between the letter from the bank stating they have no original documentation, and the documents produced by the agent for the pursuer, I feel I may have enough to accuse the bank of conjecture, forgery, not acting in my best interests, and incompetence. But when do I level these accusations?

 

Regards

 

George

[seriously fed up]

George, this is beginning to smell very much of the issues that Paul Walton had with RBS some years ago. I think I pm'd you about this.

This certainly sounds like forgery

 

1. loan document three years after your company went out of business (like they would lend to you then) - just checking that the 7 (in 2007) couldnt possibly be a 1 (so it would be 2001)?
   
2. sigs from the same person which are different (clearly different?) so at least one has to be a forgery.
   

Paul got them on this basis - suggest you contact him as while his case was heard in England, it was against RBS (see How trustworthy is your bank? | Money | The Guardian). Put paulwlton into the site search (same line as user cp, faq, calendar etc) and send him a pm to seek his advice - he knows their ways better than anyone.

As for dealing with this, if you are quite confident in what you say (and I am being devil's advocate here) you need to go along with the evidence to put a bomb under this - ie

 

1. evidence of when your business was dissolved so that the 2007 couldnt be correct, which has to put serious doubt (generously) under the documents that they have sent you
   
2. evidence of your signature to challenge the Personal Guarantor document (which I would have thought was the crucial one and is the one you reckon was signed by someone else - what a pity for them )
   

Preparation, preparation, preparation. 8)

[George1958]

Hi SFU

 

The date is definitely March 2007 when this document was supposedly signed by myself.

 

As far as the presented signatures go one looks like mine, but the other doesn't. The far more important issue is that I did not sign either document.

 

The last accounts submitted to Companies House was upto March 2004, that date is on the CH website.

 

However, the only fly in the ointment is that I did not officially dissolve the company until 2009. This was due to the type of work carried out, and a requirement of my Professional Indemnity insurance. However (again), the company effectively ceased trading in 2004.

 

The whole thing stinks from start to finish, but I really feel I am swimming against the tide. The good news is that I can still see the lights on the shore-line, so not all hope is lost.

 

Regards

 

George

[George1958]

Good morning All

 

I have attached my failed R22.1 Note.

 

Can someone take a wee look and tell me where I went wrong?

 

Many thanks and kind regards

 

George

Rule22[1] CAG.pdf

[seriously fed up]

George, you need to get an evidential base for the case

 

1. PROOF that the sig on the document isnt yours - the guarantor form is particularly important I would guess, but both would be better. But you cant go in and just assert this - handwriting analysis (stick it in google - someone in Kincardine come up)? You saying "but this isnae mine" is much less effective than a statement from a professional witness (in fact it might be better to get them to appear - another case, I know of went wrong because the expert witness only put in a statement and wasnt available for cross-examination)
   
2. evidence of what your company was up to between 2004 and 2007 (when the document was allegedly signed). There may have been no submitted accounts (get evidence of that - print off from Companies House) but also your own internal records. It is unfortunate that the business didnt go into liquidiation till 2009, but you can explain that. But to do it, you need to put together the documents to prove that the company was doing little/no business as then. Once you put these into court you can ask if a bank would really lend to a company that was doing no business, and had done so for three years at the time they allege the documents were signed?
   

Get the evidence in place. The signatures are very important. If you can show that then not only can you cast doubt on whether the authenticity of the documents, but, more importantly you can blow away the bona fides of the other side and show them for what they are.

Re the R22.1 note. This isnt something that I know about. Best pm Monty for advice on that.

Oh yes, have you contacted Paul?

[George1958]

Good evening All

 

I have attached the Record for the intended court hearing, I have a gut feeling that I will have problems as it seems I can only debate within the "Walls" of rhe Record.

 

Maybe someone can lighten my sombre mood.

 

How can an institution get away with being so underhand and dishonest, just by using procedure?

 

Regards

 

George

Final Record Edited.PDF