RBS/Anderson Fyfe citation +£6k

[paul79]

Hi,

 

Wish I had found this forum way before now, looks like it's full of good good people.

 

Ok here's my current situtation.

 

I was working as an IT consultant but have been suffering from serious depression and anxiety and have been on Employment Support Allowance since March 2009.

I am receiving the standard £64 per week.

My Wife is currently the director of a Ltd. company and runs a restaurant which is barely making ends meet since opening September 2007.

She has been unable to take any form of wage since around March 2008 due to there being no funds available.

She worked 60 hours per week 6 days a week for nearly the last 2 years.

This in turn means that she has not been able to qualify us for the income related ESA component, or council tax benefit or assistance with our mortgage repayments.

I have a 2 year old son who is receiving all the love and attention that he could possibly want.

So right now we are living on my ESA, Child/Working Tax credit and child benefit, all of which totals around £870 per month.

 

THE PROBLEM

We used to have 3 accounts with RBS, all of which we have now defaulted on with each of them being in a negative balance (overdraft).

 

We received contact from Anderson Fyfe (RBS Solicitors) stating they would be taking us to court if no contact was made.

We made contact with Anderson Fyfe (as we had done already to RBS) to explain our dire situation.

We offered them £40 per month (obtaining assistance from our parents), which was flatly refused by Anderson Fyfe. We were told that the minimum monthly payment that RBS would accept would be no less than £100 per calander month.

 

We explained to them that this was not financially possible from any angle, at which point the call was wrapped up stating that a court action would be raised against us.

 

I have just had the court documents fall through my mailbox this morning and I am starting to freak out.

 

We have already explained at every step to both RBS and Anderson Fyfe that we just do not have the money available they are asking for to pay them, and now this Citation is the result.

 

I have just discovered that this is classed as an "Ordinary Cause" debt, total is about £12,000.

 

I would really appreciate any advice from anyone regarding this as to say I'm freaking out would be an understatement.

 

We can't even go and sell the house as we would receive no benefit from the negative equity of a sale, getting a council house would be a fruitless task also as we are receving no benefit from the council either.

 

Please help me!

 

Yours very worried,

Paul.

Edited October 1, 2010 by paul79
Additional information

[alfied]

hi paul

 

If you have been on ESA since march 2009 you should be, at the very least, in the work related activity group which means you should be getting around £90 P.W. and why have you been refused Council tax benefit? If she can show she has not been receiving a wage then surely you are eligible.

Edited October 1, 2010 by alfied

[BankFodder]

Also, the OFT has said that where a proper i/e schedule is constructed and put together then creditors would prbably be acting unfairly if they refused reasonable repayments.

 

How much do you owe in total?

 

I suggest that you download imoneymanager and work out a debt management plan.

 

Even if they all start refuing payments, make the payments anyway and complain to the OFT and to the FOS and to Trading Standards about anyone who refuses you.

 

Keep a detailed file of all correspondence. Do nothing on the phone - everything in writing and keep it all ready to show anyone who needs to see it.

 

Do nothing on the phone.

 

Start treating them in a very bullsih way. Don't lie down to these people. You have to dominate them and set the tone of your relationship with them.

 

make sure that you respond correctly to all court documents and don't miss any deadlines

[paul79]

 

Hi Alfie.

 

Thanks for your reply.

I was sent for a medical assesment which I scored zero points for (which I believe is very commonplace).

I immediately appealed the situation and my tribunal date has been set for around February 2011 (no specific date has been offered yet).

 

On the grounds of my wife working full time even though she is receiving no regular or effective wage, plus the ESA I am receiving is contribution based only - we are told we are not entitled to either council tax assistance or assistance with our mortgage repayments.

 

Would the DWP prefer my wife to shut the restaurant and put around 9 people out of work effectively putting 10 new people into the job centre? I really don't understand the government sometimes.

 

Also with regards to offering payment. Each and every time we did offer payment, the amounts were flatly refused even though both RBS and Anderson Fyfe are fully aware of the circumstances we are in.

 

I will download the software you referred me to and thank you again for your advice.

 

Hi Bankfodder.

(I was unable to download the software using that link, it just gave me a blank page)

 

The total amount we owe to RBS is around the £12k mark (2 current accounts at 3k and 1 loan 6k).

Until we hit on hard times we never missed a payment.

 

The accounts are now all frozen so we were unable to directly pay anything into them either, effectively forcing us into the position of non-payment.

 

We offered payment to Anderson Fyfe, again this was flatly refused stating it wasn't the amount that their client (RBS) was looking for.

 

We have since been forced to open a new account with another banking establishment.

 

As of now, I will do nothing on the phone.

 

Just pasted iMoneyManager into Google and found the software!

Will download and look at it right no

 

The problem with that advice is that I have no mechanism in which to pay them anything towards the balance.

If I phone them, they say it's with their Legal Team and to contact Anderson Fyfe.

I speak to Anderson Fyfe, and they tell me they won't accept anything except the minimum that the bank have demanded (£100 per month).

 

I even tried my branch who we have been with 10 years, and they say they can't take payment either.

 

It's all one stressful joke imho.

 

The ironic thing is I used to work as a contractor for RBS, and was laid off due to the credit crunch caused by THEM in the first place.

 

The taxpayers technically "own" the bank, yet the bank themselves are totally unwilling to help us in our hour of need.

 

That's capitalism for you.

 

Paul.

 

Ok, I've ran the calculator - makes for very grim reading.

Household income £ 759.67

Debts £2850.00

 

It's basically saying to offer £1 per month to my creditors (which would be RBS in this case).

Edited October 1, 2010 by paul79
Additional info

[RHOOD]

Paul ,

 

first thing is NOT to speak to these people on the phone communicate by letters only sent signed for.(keep a copy)

get a copy of all your agreeements via SAR letter which will take about a year to arrive not 90 days as per the law.

send token payment by postal order £1/ month /account if you can afford it.

is there any bank charges on accounts?

dont get stressed its only money

speak to your local MP as they hate this

defend any court action as they also HATE going to Court THEY WANT PEOPLE TO LIE DOWN TO THEM.

CHECK ALL PAPERWORK IS THE CITATION CORRECT ?

 

 

Write a letter today to solicitors and rbs EXPLAINING WHY THE ARE REFUSING TO accept payments give them 7 - 10 working days to reply

 

paul look at this link and check citation paperwork

 

http://www.scotcourts.gov.uk/library/rules/index.asp

[paul79]

Im just looking into the above just now. Thanks.

One other thing. The envelopes containing the citations were just dropped through our letterbox.

Not handed to us or signed for. Does this not nullify the legality of the documents also?

 

How do i get the thread moved?

 

Paul

[IdaInFife]

Hi Paul,

 

A few questions first,

 

can you tyope up the poc's or scan and upload them here via photobucket?

 

Have they lumped the 3 accounts together? or is this action for one of them?

 

do you remember if there is any PPI on any of the accounts?

 

Ida x

[seriously fed up]

Hi Paul, Ida asked me to drop by. As she has said we really do need to see the POC to see what they are claiming, so if you can get that up it will be a help to us to help you.

It would also be useful to see your original loan agreement to see how it stands up

Having read through your thread, there are a couple of things that worry me

 

1. that two of the debts are current accounts and the CCA doesnt apply to them in the same way as, say, credit cards
   
2. your other debt is a loan, and in my experience, while they do make mistakes with these, they tend not to do in the industrial numbers that they have done with credit cards
   

But lets have a look at the POC and also the loan agreement and we can take it from there.

The advice you have had so far is very good and my advice would be to take it. In particular

 

• dont speak to them on the phone
  
• get a SAR in to see what they have on you - for instance, prior to termination of the loan (if they havent already done so, they have terminated this by the court case seeking full repayment) was there a DN? If not, so much the worse for them.
  

The main thing that I would want to emphasise is that a Court wont force you to pay more than you can afford and in this respect you have a few good cards to play

 

1. you have tried to negotiate with them in good faith, but they have obstinately refused to go below a figure that you just cant afford
   
2. you have looked hard at your financial situation and what you are offering them isnt just a number you have made up
   
3. you have endeavoured to make those payment and its RBS who are screwing things up
   

If/when it gets to court, dont be afraid to point this out to the Sheriff. But Rhood is right - they dont expect to be opposed in court - just turn up, get their order, send their bill (which will be added to what you owe). I know of one case where when the defender turned up the brief representing the lender was very unhappy about this, and apparently said so!

MPs will vary on this but it a visit might be worthwhile. Explain how the situation arose (not wild living); explain how RBS have mishandled it; explain how Anderson Fyffe have only made it worse - though probably increased the size of ther bill. In some way its only the lawyers who gain from this, as even if you won. Anderson Fyffe would still get paid.

But first thing that would help us would be to get the papers up here for others to look at (with your personal details removed).

As Rhood says "dont get stressed" - its what they want.

[paul79]

Hi,

 

Ok, I don't have access to a scanner until tomorrow, so I will get the POC uploaded so you can all have a look.

Also, I will get the SAR request off tomorrow, as well as token payment for each of the 3 accounts.

 

In answer to the various questions that I can answer today, here goes...

 

• I checked the courts webpage, and it does state that the documents should have been handed to me, or delivered by recorded delivery. I found the letters in my mailbox with no stamp attached so they must have been dropped through the letterbox by a rep of the sheriff/court.
  
• A large chunk of the balances owed will be bank charges/interest charges/non-payment charges etc. We actually notified the bank to cancel the DD's on the account we used to pay the bills and also notified them of our financial struggle. I was assured that the DD's were cancelled but wasn't informed that I needed to contact the DD owners to cancel at their end too. I realise that the onus would be on us to just know this, but unfortunately we didn't.
  
• The citation does appear to be correct, they have 4 seperate "craves", 1 for each of the accounts, and another for the fees for taking us to court.
  

I will get the POC uploaded tomorrow for you all to see.

Thanks so much for the advice guys, I really don't know how much more my nerves can take with this (Been on anti-deps for nearly a year and all of this is just making things worse)

 

Paul.

[seriously fed up]

Re the DDs, its just not right to say that you have to cancel at the bank and ALSO with the payee. It is enough to tell your bank that you want the DD cancelled and they must act on these instructions. Of course the payee may present their DD for payment, but if you have cancelled it shouldnt be paid.

If this is what happened - ie you instructed the bank to cancel, but they paid out causing you more debt, more interest, more charges etc - then its the bank that has the problem as they have not followed their customer's instructions. In due course, if you hadnt advised the payee, no doubt a letter saying "you owe us money" would follow, but the bank shouldnt have paid out if you told them to cancel the DD.

Assuming you have evidence of telling the bank to cancel various DDs that would stand up in court, try to work out how much this has cost you (or even a decent estimate).

[paul79]

The evidence would be on their telephone systems as it was a phonecall to the bank that generated the cancellation requests.

Whether or not that a) the call was recorded and b) they would release these recordings should this come to a hearing would be another question I suppose.

Thanks for clearing that up for me though.

 

Paul.

[seriously fed up]

You dont have a letter from them/to them - or anything that would back up your case? Did the DDs that you had cancelled not come up with some frequency? As/ when they continued to pay out, did you not take some action to repeat that you wanted them cancelled? Have you put this to them, and if so have they responded? I expect if they have (or you do) they will deny the lot (there isnt any point in them repeating what they told you as its just wrong) - but if you could come up with something that showed (not asserted but proved) that they were told to cancel and didnt, then it would at worst cast doubt on their case.

[mystery1]

Are you close to a law library or a library that has a decent law section ? If so i'd urge you to go along and take a look. Many will allow you to study there for free and some will allow you to join for a fee. Books to help are

1.Civil Procedure & Practice Charles Hennessy which is good on procedure and easy to read

2.Practical Advocacy in the SheriffCourt excelleant on what happens in court and how to do it.

3.Macphails Sheriff Court Practice a useful more detailed addition to books 1 and 2.

 

I would strongly urge you to use these to help with the advice you get here.

 

It is hard to help with strategy when you don't have the facts of the case and indeed whether you just want time to pay or whether you have the ammo to get revenge for shoddy treatment. Defending can be costly if you lose but obviously if you win pretty good.

 

The evidence of offering to pay and being refused will not go down well in court for them and it may sway the Sheriff in your favour especially if you seek a time to pay order.

 

First things first though. Get the docs up.

 

M1

[paul79]

OK folks sorry for the delay.

I've uploaded the POCs but can't post the link to them due to my post count level...

Hopefully I won't get in trouble for this, but the link is

s224.photobucket[dot]com/albums/dd216/m0hses/CDS/

I've put some notes below some of them.

If you need anything else let me know.

 

Thanks,

 

Paul.

 

I've uploaded the documents to photbucket as suggested with comments as to each page.

I'm too new to post the link so not sure what to do now.

 

Paul.

[IdaInFife]

can you send me them via PM and i will upload to the thread for you

[paul79]

Maybe this will work better?

[ATTACH=CONFIG]22227[/ATTACH]

[ATTACH=CONFIG]22228[/ATTACH]

[ATTACH=CONFIG]22226[/ATTACH]

[ATTACH=CONFIG]22225[/ATTACH]

[seriously fed up]

all coming up as invalid Paul. Might be better to take Ida up on her offer?

[paul79]

Just did, sorry if some of my posts have messed up the thread.

 

Paul.

[IdaInFife]

poc's

 

http://s224.photobucket.com/albums/dd216/m0hses/CDS/

[seriously fed up]

The POCs concern three current accounts, and to the best of my knowledge there arent that many holes in the legal standing of their T&Cs for these as there are for, say, credit cards.

My advice would be

 

1. do whatever you can to get hard evidence that you instructed them to cancel dds, but that they carried on paying them regardless. If you can it should reduce the amount they could claim as the payments should not have been made as you had withdrawn your authority for them to be paid. It might even be worthwhile arguing this, even if you have no evidence - what's the worst that will happen? Sheriff doesnt believe you? The alternative is that he doesnt know. So I would calculate the total dds that should not have been paid, and add the various fees that they will have added - then add whatever the rate of interest was to that.
   
2. get your evidence together of your attempts to negotiate with them and their obstinacy about a repayment figure that you just cant afford. For one thing, if an order is granted, if your assessment of your financial situation is correct, the court will order a lower payment than RBS is looking for, and RBS know this. It is possible that if they see you are serious about seeing this through court, they might become more reasonable
   
3. be assured that a court will not order you to pay more than you can afford. Its not a case of "you win and walk away" or "they win and get the kind of payment they want". The payment will be assessed by the court in light of your financial circumstances.
   

[paul79]

Thanks for the response.

After taking a step back to assess this dire situation, my wife and I have both agreed that the balances are as the bank say they are.

We're certainly not trying to avoid payment, but the fact that Anderson Fyfe were unwilling to negotiate with our offered payment THEN the fact that the citations arrived led us to believe we were in a no win situation.

 

Thankfully, the kind advice offered by the forum members have allowed us to realise that we won't be forced to pay their ridiculous request of £100 pcm.

 

We never denied that these debts were ours, we just wanted time to pay lower amounts until our financial situation improved.

 

Couple of other things that I've thought of though;

 

• Is it worth contacting Anderson Fyfe prior to court proceedings (via letter) with offer of payment again?
  
• Should we still send the token payments prior to the possible court hearing?
  
• If it goes to a time to pay order, is it still possible for us to write to the bank using the templates here to chase/recover the bank charges?
  
• If we are not defending, is it still worth applying for the SAR?
  

I wish I could contribute to the forum to return the generosity offered by everyone here, rest assured when I can...I will!

 

Paul.

Edited October 4, 2010 by paul79
Missed some info...

[mystery1]

 

 

 

[seriously fed up]

The key thing is indeed to appreciate that payments ordered by the court will reflect your ability to pay.

BUT, if it were me, I would still aim to minimise how much I had to pay them back. You wont under most circumstances get current account fees back. the Supreme Court saw to that in November last year. BUT, if you cancelled DDs and they paid out on them despite no longer having your authority to do so, AND this led to you being charged fees then, I would argue that these fees have been levied on you unlawfully. Also, with the DD guarantee that they trumpet, you should be able to reclaim the direct debits they paid out on without authority. For sure this wont mean that you owe them zip, but it could minimise the damage. I really would urge to get whatever evidence you can to this effect.

[stephen88]

i am sure that if you go to court then it may work out better for you because even though it will affect your credit rating which i'm sure you have given up on already the court may be more likely to accept the repayments that the creditors didn't accept. I would concern yourself with putting a good case forward that shows how you want to make the repayments and that you take it seriously but at the same time you can only pay what you have got. I think you shouldn't worry to muc though because you will find that you are not the only person in this boat and that the court is in fact just a meeting room which gives you the chance to take on the creditors with a referee. I hope this helps and i hope you find your fight for these people because if you are scared and worried then they have already won just fight back it is after all the best form of defence.

[paul79]

Hi guys,

Feeling much better about this whole thing now thanks to this forum.

 

I've done my homework and defence isn't going to be possible (we can't get legal aid and we can't afford to defend).

We were looking at the paperwork for the Time to Pay Direction again last night and we think we have it sussed out now.

 

Basically we are both joint-defenders, we are a little confused how to fill the form in.

My wife earns in total (wage,tax credits etc) £1010 a month, however my ESA totalling £260 a month.

They have an income/expenditure section we both need to fill out.

 

So if our mortgage is £276 per month for example, on my form can I just put that I pay the £260 and my wife pays the other £16 (along with the rest of the monthly bills)?

 

We obviously can't just split it 50/50 as our "income" levels are so different.

 

As far as the "plead your case" section in the Time to Pay Direction goes, I have simply stated I have been on ESA for the last year or so, I am suffering depression and anxiety and I am currently unfit for work. I do not deny the debt, yet have no mechanism in which to pay the pursuer the amount they are demanding.

I have also entered into the section about making offers and having them flatly rejected on multiple occasions.

 

Another thing as well, my wife is only just starting to receive a wage and I think that finally the ESA are going to switch us to income based ESA (£130 per week).

 

But how do we base the figures we offer in the Time to Pay Direction?

It would be unfair to put my wife's very recent change of wages in and the pending ESA decision as this is NOT how our finances have been shaped for nearly a year now.

 

I hope I'm making sense here.

 

Thanks again for your continued advice/support,

 

Paul.