RBS Mint Loan - Court Action Started & Dodgy DN issues

[diddydicky]

An interesting development.

 

Those who've been following this thread may remember that back in early Oct (see post 82) I received a letter from the Sols saying amongst other things that they felt my pleadings were equivocal and asked me to confirm whether I believed any part of the agreement was still in effect.

 

I replied to the negative. However, my letter contained other matters and so was sent under a without prejudice heading.

 

Both parties have now submitted their bundles prior to the hearing just before Christmas. Upon receiving mine, the Sols have written asking me again to confirm whether it is my case that any aspect of the agreement still subsists as the only response they’ve had from me regarding this was received in a without prejudice letter.

 

I suspect there must be some sort of problem on their side, but am not sure what it might be. Anyone have any suggestions?

 

it would depend on "what other things" were in the letter- they may be giving you a chance to respond otherwise they may present your letter to court and which may stand you or them in bad light- depending on whjat else it said

[Pumpkinhead]

Thanks for all your input.

 

I will post up the WS shortly although it doesn't really say much or anything new.

 

So far, I've replied to the Sols telling them that before I give further consideration to their request I want a better understanding of their reasons for making it and that I want to establish exactly why they want certain comments contained in my WP letter made available to the Court. I doubt they will tell me much but we'll wait and see.

 

I too don't think Brandon is relevant here and if it did surface at the trial I would request an adjournment/stay as appropriate.

 

Let's also remember that the DN they sent me contained other mistakes, it isn't just about them not allowing sufficient time to remedy. They also failed to include a whole "required" paragraph and the Office of Fair Trading sheet on default.

 

In answer to Pumpytums thoughts that they could be saying that it was I who ended the agreement and so must pay the balance as per the clause in the T&C of the agreement, I don't think this would stack up. From my point of view the order of events was that:

 

1. I defaulted
   
2. They sent me a DN which I identified as invalid
   
3. I did not remedy the breach
   
4. Not realising at the time that the DN was invalid, they subsequently terminated the agreement in writing and demanded the balance
   
5. I wrote advising them of the invalid DN and accepted their rescission of contract
   
6. Game over and they lose the right to claim sums not yet due
   

Undercover Elsa has three suggestions: a, b and c of which she hopes it is "c". I think it's more likely to be "a" and that they are going to try to outweigh the CCA with the moral approach of "you borrowed the money didn't you and we should be paid it back." We have seen a lot of judgements made in the claimant's favour purely on this moral basis. We know it's not right and I can only hope that I argue my case well enough from the CCA point of view on the day.

 

Diddydicky wonders what "the other matters" might be in the Sols original letter as this might give a clue. To remind you all this letter said:

 

"Our client's rights existing before the purported repudiation and your acceptance thereof are not lost by reason of any repudiation and therefore you are required to pay the balance due to our client in full within the next 7 days. We can confirm if you pay this amount our client will update your account as settled, remove the default and amend your payment history to queried.

 

If you are not minded to settle the matter as described above we would invite you to withdraw your strike out application and consent to the amended POC. (They were allowed to amend their POC see earlier posts and my SO application was dismissed unheard).

 

Further, your pleadings are somewhat equivocal and we would ask that you confirm whether it is your case that any aspect of the agreement between the parties is still subsisting. If that is the case a DN can and will be issued upon you. Please confirm within 7 day.

 

For the avoidance of doubt, our client accepts that the DN was not valid."

I think we can see from this that if I were to select option "b" from Pumpytums choices, I would make the claimant very happy but I am unlikely to oblige.

 

My overriding feeling is that they do not believe the invalid DN is an issue for them, but I can't see why it shouldn't be.

 

Any further thoughts?

[Pumpkinhead]

Here is the Claimant's WS. All the docs in their Bundle are already on here and include the DN, the TN, my letter accepting their repudiation, their amended POC, my amended POC, the agreement & T&C. A statement of account and of arrears are the only new docs.

 

I'm wondering if it is para 15 that makes the Sol want open disclosure of the content of my WP letter. Para 16 seems to be harping on the moralistic approach maybe??

 

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/WS1.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/WS2.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/WS3.jpg

[gh2008]

They are clutching for straws aren't they. As their DN was faulty they NEVER BECAME ENTITLED to demand SUMS NOT YET DUE i.e. the capital or balance.

As they terminated (and the date of that letter is the date of termination, not your letter date) then from that point onwards there are no new sums due. Therefore amount due to them are legitimate arrears at time of termination (less any charges applied to the account which are not in the terms of the agreement)

 

As for S69 interest .... oh dear S69 interest is specifically excluded on debts where there is an existing rate of interest applied. CCA agreements, by their very nature, have a rate of interest applied. If, by their own error, that rate of interest is 0% for terminated accounts then so be it.

 

They are not and never were entitled to the repayment of the capital, they were only ever entitled to payment of the amounts as per the agreement, which they terminated and you accepted that termination.

 

S87 states 'before a creditor can become entitled' which clears indicates that that entitlement is not automatic and has to be gained.

[Pumpkinhead]

Here's a thought ..... How about I write to the Sols asking whether it is their claimant's case that any part of the agreement still subsists?

 

Worth a shot?

[pumpytums]

Hi Pumpkin,

here is a thought if the judge turns to you and asks you to put a figure on the damage you have suffered from the Claimants actions in breaking the contract, could you do so? It might be worth drawing something up for the time you have wasted on them, all the calls and letters you have had to field and all the research you have had to conduct. I'm not specifically talking about damages but a judge may want to know what damage you have suffered by them trying act like a moneylender/loan shark of years gone by.

 

Might be worth an hour of your time.

 

Pumpytums

[diddydicky]

if a creditor writes and UNLAWFULLY terminates an agreement (or to be exact attempts to) then that letter is NOT the date of termination (IMO) since the unlawful attempt gives the debtor the right to Elect whtehrn to accept the creditors unawful action and treat himself as discharged from any further obligation

 

OR

 

hold the creditor to the agreement

 

therefore IMO the termination takes effect at the point at which the debtor makes the election!

[Bigdebtor]

I would have asked this question on Pinky69's thread - but the mods have decreed we can't post to it any more.

 

Am I right in thinking the Brandon appeal was due to be heard in early December? Does anyone know if this is right and the outcome?

 

BD

[gh2008]

I would have asked this question on Pinky69's thread - but the mods have decreed we can't post to it any more.

 

Am I right in thinking the Brandon appeal was due to be heard in early December? Does anyone know if this is right and the outcome?

 

BD

 

adjourned till next year

[diddydicky]

february i beleive

[Pumpkinhead]

The big day is fast approaching - next Tuesday. Any last minute advice, guidance much appreciated.

[frettful38]

http://www.hmcourts-service.gov.uk/l...se_id=20101463

 

Summary Case Details for 20101463

 

 

Case Reference:B2/2010/1463

Title:Ian Karl Robert Brandon v American Express Services Europe Ltd

Type:Permission to Appeal

Appeal/Application:for permission to appeal and a stay of execution

Hearing Status:Fixed on 03-Feb-11

Venue:London

Constitution:

LORD JUSTICE PILL

LORD JUSTICE LLOYD

LORD JUSTICE TOMLINSON

Case Results

 

 

Track Your Case

 

Current Status:Awaiting a hearing - see Hearing Status

Tracking Information:08-Dec-10: Case passed to List Office

25-Aug-10: Case renewed to oral hearing

30-Jul-10: Permission to Appeal referred to Lord/Lady Justice

02-Jul-10: Bundle(s) approved

22-Jun-10: Letter sent to applicant/solicitor to request bundles and/or documents

21-Jun-10: Case file passed to Case Management

 

 

Last Updated:09-Dec-10

[Pumpkinhead]

STAND BY - I've received skeleton argument from Sols re my case this Tues. Am just scanning in and will post up shortly. Please read and advise asap.

[Pumpkinhead]

Have had to load it as separate pages, but hopefully it is in page order:

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel1.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel2.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel3.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel4.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel5.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel6.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel7.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/Skel8.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/ChittyExcerptPage1.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/ChittyExcerptPage2.jpg

http://i685.photobucket.com/albums/vv213/pumpkinhead50/Mint%20Loan/CCAExcerpt.jpg

 

Please bring this thread to the attention of any other top Caggers who might be able to offer advice/thoughts.

[pumpytums]

Interesting. So basically they have said that they want the court to rule on whether the agreement is indeed terminated obviously if it's not they will simply issue a new DN and off we go again.

 

As I have said many times the point to make is the Claimants actions towards the Defendant after they terminated or attempted to terminate. What damage has resulted in the Claimant ignoring both the agreement (does it contain info on how they should see early repayment?) and the Consumer Credit act that was designed to stop companies basically demanding all their money back at the drop of the hat like a money lender and loan shark of times gone by. You need to quantify what damage you have received from the Claimant. They have never been entitled to demand the full sum back as to date they have never issued a valid default notice.

 

The agreement at the end of the day was that the Defendant would pay back X amount per month for Y months. The Claimant by their own admission (I think) has terminated the agreement which they are not allowed to do. They have basically said as you have terminated the agreement (see my previous) that you are expected to repay the remaining balance. I think they could argue morally you should pay it back but legally I think they may have blown it. As I have said above the Claimant has very clearly broken the agreement you are entitled to damages add them up so if it goes the wrong way for you show the judge how you have suffered. Was a payment plan ever accepted?

 

Points of fact

They are not allowed to terminate without a valid DN

 

They are not allowed to demand monies not yet due until a valid DN is issued.

 

They have broken the agreement and the CCA by attempting termination and demanding.

 

The point I would make is that the Claimant had no intention of abiding by the agreement and quite clearly wanted their money without following the rules.

 

Also what the hell is an "offer" to terminate? Are they giving you a loaded gun?

 

At the end of the day the result of you breaking the agreement and the Claimant correctly following it's terms and the CCA is that they can indeed demand the full balance back early. However if the Claimant doesn't want to be bound by the agreement or the CCA they they should only really be entitled to the arrears. If you could manage it I would take a cheque with me or even the cash. Make it plainly clear that you are willing to pay the arrears now and walk away but if not you want the courts permission to submit a counter claim for the damages you have suffered.

 

Worst case I would say the judge could turn round and say "The agreement continues as the Claimant is not allowed to terminate" "you are not allowed to terminate either until all the money is repaid" then they will issue a new DN and off we go again. Work out your damages just in case and hit them with it.

 

Sorry I can't be more help and my reply is a bit rambly .

 

Pumpytums

[gh2008]

Ok, I have only got time for a VERY quick comment.

 

Their argument centre's around 5.2 in their skelly

 

That is easy to blown out of the water

Their RIGHT at the time DID NOT include the right to repayment of the CAPITAL AMOUNT as that is sums not yet due.

 

That RIGHT or ENTITLEDMENT has to be earned the CCA (S87) is VERY clear on that fact. The Claimant has to BECOME ENTITLED is is not an automatic right.

 

They did not follow the rules and therefore did not BECOME entitled - so never ever were entitled to the sums not yet due.

 

I have only read to page 2 as I have to go out but if they are then arguing that the termination was ineffective does that mean all teh other things they did that the CCA specifically PREVENTS them from doing demanding balance not sending statements etc etc does that mean all those things just didn't happen either ......

There is also a strong argument for an unfair relationship and breaches of CPUTR here as well, as all their actions following your notification of their error were unfait IMHO

 

PM Babybear as I think she is up on CPUTR

 

sorry it's quick - I will hopefully get back onto it tonight

[Pumpkinhead]

Thanks Gh. I've PM'd Babybear and thanks so much for your help. Am I right in saying I need to put a skelly together too? I thought you didn't have to do this for small claims?

[citizenB]

didnt think that you needed to provide skeleton arguments for small claims either, but in the event that they have, it would be in your interests to provide one as well You need to go through each point carefully to look for hidden pitfalls.

[gh2008]

No, you don't *need* one but IMHO you need one for your own use if nothing else.

 

Will have a good read of the skelly today

[gh2008]

Their argument centre's around 5.2 in their skelly

 

Their RIGHT at the time DID NOT include the right to repayment of the CAPITAL AMOUNT as that is sums not yet due.

 

That RIGHT or ENTITLEDMENT has to be earned the CCA (S87) is VERY clear on that fact. The Claimant has to BECOME ENTITLED is is not an automatic right.

 

They did not follow the rules and therefore did not BECOME entitled - so never ever were entitled to the sums not yet due.

 

I apologise for quoting myself - but I feel that this is the crux of the case.

 

They terminated the agreement, not by S87, nor by either S76, S99 or any other section of the CCA.

 

Their termination was of their own volition and was a repudiation of contract.

 

It is true that their rights accrued to that point, continue after that recission - however the CCA is quite strict about those rights. And as neither a valid S76, S87 or S99 notice was served, the Claimant never became entitled to 'sums not yet due'

 

The Claimant will argue for the latest date of termination (to boost their sums due to that point) however their letter of 23 Oct was not "an offer to terminate" (skelly 17.1) but was in fact a termination notice (skelly 10) and was therefore effective immediately.

At no point after that did the Claimant suggest that the agreement was not terminated from that point until now.

 

The Claimant argues that their rights that had accrued before the breach remain unaffested - and I agree with that and so does Common Law and the CCA (well they don't specifically agree, but doesn't counter it)

 

So what were those accrued rights?? that is the main question

 

The Claimant argues that it was entitled to repayment of the capital - why? the Cliamnt uses Common Law to explain it. HOWEVER the CCA overrides common Law when dealing with regulated agreement.

At no time is teh Claimant have the right or entitlement to any sum not due. (demand earlier payment of any sum)

 

In their skelly the Claimant interestingly quotes S78 and S102 and dismisses their requirement on termination as they do not have an effect on this type of agreement

HOWEVER S76 DOES and they conviniently leave that out

 

76. Duty to give notice before taking certain action. —

 

(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

(a)demanding earlier payment of any sum, or[/b]

(b)recovering possession of any goods or land, or

©treating any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred,

except by or after giving the debtor or hirer not less than seven days’ notice of his intention to do so.

 

(2) Subsection (1) applies only where—

(a)a period for the duration of the agreement is specified in the agreement, and

(b)that period has not ended when the creditor or owner does an act mentioned in subsection (1),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

 

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

 

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

 

(6) Subsection (1) does not apply to a right of enforcement arising by reason of any breach by the debtor or hirer of the regulated agreement.

 

They may argue that that does not apply as there was already a breach by the debtor p.6 above, however that's where S87 comes in and is even more restrictive.

 

These are just rambling notes and I am sure others will be able to add to them and produce a proper argument

IMHO the Claimant is arguing a right to the capital under Common Law which is not applicable when the CCA overrides Common Law.

 

The CCA is quite clear that the Claimant never has a right to demand or to receive earlier payment of any sum.

 

BTW you will also have an argument for an Unfair Relationship (CCA S140) and breaches of the CPUTR as they are aware of their situation yet have still demanded full balance etc on may occasions

 

hth

 

This is a *really* interesting case for CAG as a whole as the accepting recission argument has been rubbished by many BUT it is interesting to see it being argued out properly here ......

It would be *really* good if the Site Team could maybe get more involved in this thread as it is another tha could shape the way cases are defended - just mho and all that

[Pumpkinhead]

Thank you so much gh for the time you've taken on my behalf. Yes, I too feel this is a very interesting and important case for CAG. I will be working throughout today and tomorrow on this and will be posting up regularly my thoughts and findings.

[gh2008]

I'll be about most of today & this evening

 

IMHO you need to find case law where it states no remedy at Common Law. There is one somewhere on CAG because I remember posting it (having found it from someone else)

I'll have a hunt for it

[Pumpkinhead]

Very heavy snow here now. What happens if I get to the Court tomorrow but they don't due to the weather?

[car2403]

Adjournment : (

[Pumpkinhead]

Can either I or the Claimant request an adjournment in advance (today) due to the weather?