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    • Revised defence:   The Defendant contends that the particulars of claim vague and are generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.   1. The Claimant claims £2247.91 is owed under a regulated consumer credit account under reference xxxxxxx. I do not recall the precise details or agreement and have sought verification from the claimant and the claimants solicitor by way of a CPR 31.14 and section 78 request who are yet to fully comply. I dont believe they have provided this yet correctly   2. Paragraph 3 is denied.The Defendant contends that no notice of assignment pursuant to s.136 of the Law of Property Act & s.82 A of the CCA1974 has ever been served by the Claimant as alleged or at all. still stands   3. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:   (a) show how the Defendant has entered into an agreement; and (b) show and evidence any cause of action and service of a Default Notice or termination notice; and © show how the Defendant has reached the amount claimed for; and (d) show how the Claimant has the legal right, either under statute or equity to issue a claim;   4. After receiving this claim I requested by way of a CPR 31.14 request and a section 78 request for copies of any documents referred to within the Claimants' particulars to establish what the claim is for. To date they have failed to comply to my CPR 31.14 request and also my section 78 request and remain in default with regards to this request.   5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.   6. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.   7. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.    
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dpac123

RBS taking me to court - *Struck Out* ** New claim issued by RBS **

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Got a directions hearing relating to a Nat West loan and overdraft. This already went to the Small Claims court in 2009-10 and was set aside. I thought that was the end of it, but Irwin Mitchell made contact again and have taking it forward to my local court, where we now have a directions hearing.

 

Nothing has changed in terms of the facts - I requested a SAR in 2010 and after a few months of messing about finally got some info through. There is no termination notice, the credit agreement is not in the presribed format, as well as a whole host of other factors. I have submitted the following response to the allocation questionnaire:

 

I consider it inappropriate to try to settle at this stage because a dispute still exists between myself and the claimant. A subject access request was sent to the claimant on 10/12/09 and after much deliberation from the claimant, we finally received some documentation in the second quarter of 2010. This documentation was incomplete for the following reasons:

1. There was no default/termination notice for the loan or overdraft.

2. There was no valid credit agreement for the loan or overdraft.

In addition, the following issues are still unresolved:

1. The claimant does not appear to have taken account of any other potential creditors, who would suffer as a result of any proposed action against us.

2. The claimant closed our accounts without warning. The FOS mention a 30 day notice period:

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/48/banking-closing-accounts.htm

but we didn't receive any such notice. This caused us great inconvenience and incurred further costs with the claimant, which have been added to this claim. We have no documentation to inform us of the claimant's intention to close our accounts or to give us time to make alternative arrangements.

3. The claimant transferred funds from one account to another to cover a loan payment in full knowledge that there were insufficient funds in either account and that such an action would incur additional bank charges.

For these reasons, I would ask the court to deny the claimant's request until such as time as the claimant produces the valid documentation.

 

We are now looking at a directions hearing next week and the local court have not really been particularly helpful - all I can ascertain is that I should attend!

 

Any help would be much appreciated!

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Hi Dpac

 

Firstly yes you must attend.Just a few pointers towards what they may come up with.

 

There is no DN/TN for the OD it a recall notice headed " Notice served under section 76(1) and 98 (1) of the CCA1974 " allowing a further 18 days to respond.

A formal notice would have been sent prior to this Notice to request your intentions and allow 21 days to respond.

 

The loan account agreement would not be supplied via DPA request it must be done via a CCA request section 77 cost a £1.

There would be a DN for the loan account which would include a Termination statement.So no separate Termination Notice.

 

With regards to transferring funds from your Current Account to the loan Account they are allowed to do this as per offsetting.

 

Regards

 

Andy


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Hi Andy,

 

Should there be a DN/TN for the loan? If so, we haven't received it. Also we have a copy of the credit agreement but the interest rate is wrong and there is no APR listed - does this work in our favour?

 

Is transferring funds from one account to another still allowed if there are no funds in either account and the bank are aware that the transaction will fail and trigger further bank charges?

 

Also, with the directions hearing, do we need a solicitor and will we be required to say anything?

 

Thanks, D

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Hi Andy,

 

Should there be a DN/TN for the loan? Yes If so, we haven't received it. Also we have a copy of the credit agreement but the interest rate is wrong and there is no APR listed - does this work in our favor? APR doesn't need to be shown just interest rate but if that is wrong then a plus.

Is transferring funds from one account to another still allowed if there are no funds in either account and the bank are aware that the transaction will fail and trigger further bank charges? Correct and in that case would be wrong.

 

Also, with the directions hearing, do we need a solicitor and will we be required to say anything? No just attend raise points and request anything further you need to clarify or substantiate a defence.

Thanks, D

 

Regards

Andy


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Also, with the directions hearing, do we need a solicitor and will we be required to say anything?

 

Thanks, D

 

Hi,

 

My directions hearing quickly turned into a full blown hearing and everything was decided on the day. If a DJ feels that there is enough info in front of them to make an informed decision he will. Saves costs all round too. Best to have your arguments ready.

 

Mike


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I turned up for the directions hearing only to be greeted by the RBS barrister and ushered in a room. He proceeded to tell me that Irwin Mitchell were "very keen" to set up an out of court arrangement if possible and that we could propose a 14 day adjournment to the judge in order to get an agreement set up. I agreed to do this and then phoned Irwin Mitchell to see what their proposal was. The rottwieler I spoke to talked about a "Tomlin order", which I promptly Googled and found to be a mechanism through which unenforceable agreements can be made enforceable - not good news.

 

They are sending me an income and expenditure form but I know that any proposal I make will be way below what they want. As things stand, I have what appears to be a valid credit agreement from 2008 but the terms and conditions it refers to are missing. I have asked for this info - does the absence of this info make the credit agreement unenforceable?

 

In addition, the other issues I have flagged include no default/temination notice, no acknowledgement of any other potential creditors, accounts were claims without warning (after being a customer for 23 years), funds were "offset" from one account to the other in full knowledge that there were insufficient funds in either account, charges upon charged (bounced DDs/cheques).

 

Can these factors be used to prove a breach of FSA regulations and then to challenge the fairness of the relationship under s.140A of the Consumer Credit Act?

 

Any ideas would be appreciated.

 

D

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Any info about the pros and cons of a Tomlin order would be appreciated. My sense is that a Tomlin order makes an unenforceable debt enforceable.Also my income/expenditure will not provide them with a big enough payment each month so Nat Worst will probably refer back to court. Could do with some pointers on how to play this ...

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The TO doesn't make an unenforcible into an enforcible it merely stays legal proceedings and providing you stick to the schedule of the TO then it will remain that way until the debt is paid.

 

Andy


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Any info about the pros and cons of a Tomlin order would be appreciated. My sense is that a Tomlin order makes an unenforceable debt enforceable.Also my income/expenditure will not provide them with a big enough payment each month so Nat Worst will probably refer back to court. Could do with some pointers on how to play this ...

 

A TO isn't as scary as it may seem. Also stops you getting a CCJ.

 

If it went all the way and your I & E (to the court) shows that you can afford only £1 a month then that's more than likely all they'd get. So offering £5 or £10 against a TO is neither unusual or unacceptable.

 

Google 'Tomlin Order' and see what you find as I believe that you need to get the wording correct (in your favour on things like late payment etc.).

 

Look here >>>

http://www.consumeractiongroup.co.uk/forum/showthread.php?267605-Varde-Brachers-have-filed-a-claim-with-the-county-court&p=3722602&viewfull=1#post3722602

 

And have a look around the forums for similar experiences.

 

Mike


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My views are my own. If in doubt, seek professional advice. If I can help though, I will. CAG helped me!!

 

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IN THE XXXXXXXXXXXXX county court CLAIM NO:XXXXXXXX

 

Between Claimant

 

 

Claimant

 

and

 

 

Defendant

 

 

 

 

Tomlin Order

 

 

Upon the parties having agreed terms of settlement

 

 

BY CONSENT IT IS ORDERED THAT:

 

 

1. All further proceedings in this action shall be stayed upon the terms setout in the

the attached schedule, except for the purpose of carrying such terms into effect.

 

2. Each party shall have liberty to apply to the court if the other party does not give

effect to the terms set out in the schedule.

 

3.No order for costs.

 

 

Dated ......................... .......

 

We consent to the making of an order in the above terms

 

 

......................... .................

Sols for the Claimant

 

 

 

......................... .................

 

XXXXXXXxx,Defendant

 

 

 

 

 

 

 

 

 

 

SCHEDULE

 

 

1. The Defendant shall pay to the Claimant the sum of £XXXXXX in Full and final

settlement of this claim

 

2. No charges will accrue on the settlement sum

 

3. The Defendant will pay to the Claimant on or before xx xxxxx 2010 the sum of

£XX.00 followed by payments of £XX.00 on or before the xxth of each month and every

month thereafter until the balance has been paid in full.

 

4. If payment is not made on the due date the Claimant shall give notice in writing of such a

default to the Defendant and if payment is not made within 14 days from the date of such

notice the Claimant shall be at liberty to apply to lift the stay and proceed with the claim.

 

 

5. The amount of the monthly instalment payment shall be reviewed at 12 monthly intervals. The defendant shall co-operate

with the Claimant on such review by providing the Claimant with such information about his/her assets income and expenditure,

as the Claimant shall reasonably request.

 

6.If following any review the Claimant and Defendant agree a new monthly instalment amount, the new monthly instalment shall become payable under

paragraph 3,with effect from the next instalment date.

 

7.If following any review, either the Claimant or the Defendant considers a newmonthly instalment amount should be payable but cannot agree this with the other party, either party shall be at liberty to apply to the Court for the Court to determine the monthly instalment payable and thereafter the stay and settlement contained in this schedule do continue.

 

 

That’s how you want the TO laid out and content Dpac if you come to an agreement (12mth month review if possible)

 

Andy

Edited by Andyorch

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Ok guys, cool really do with some help here as court is tomorrow.

 

RBS offered a Tomlin order and I filled out inc and exp and returned this. RBS agreed to the amount and sent over a contract for me to sign. The contract states a 6 monthly review and is for the full amount they say I owe. I can see this becoming an open-ended stick to beat me with that will keep getting referred back to court every 6 months as they try to increase my monthly payments. I therefore responded:

Apologies for the delay in responding. We have been seeking direction with regard to the contract you have attached and have concluded that this is not an acceptable way forward for the following reasons:

 

1. The settlement amount is incorrect because it includes interest and charges that we should not be liable for.

2. The review period of 6 months is too short and is too open ended. eg. if we decide we can only afford £20 a month and RBS decide it should be £40 per month, it will go back to court again and we will be back to where we started.

3. There are several violations of Banking Code that will be brushed under the carpet under a Tomlin order. These include, but are not limited to: unfair bank charges, lack of default/termination notice, no consideration of financial hardship, incomplete credit agreement and associated documentation, our bank account was closed with no written or verbal warning (should be at least 30 days), payments were made from one account to another in full knowledge that there were insufficient funds and that this transaction would incur charges), default has been put on our credit files despite this matter still being in dispute.

 

At the court hearing tomorrow we will be asking for full disclosure of all documentation and are considering a counter claim to compensate us for the problems RBS have caused us by violating the Banking Code and to cover additional charges that have been added.

 

Like yourselves we would prefer to resolve this matter outside of the court and are happy to discuss the matter further, but not through a Tomlin order, especially one that is so clearly stacked against us.

 

 

The response we got is as follows:

 

You have made a settlement offer which my client has accepted. So far as it is concerned there is a concluded agreement.

The only remaining issue is the mechanics by which that concluded agreement results in the conclusion of these proceedings.

As you are not willing to accept the terms of a Tomlin Order, then the only alternative is for a judgment to be entered in the agreed terms; namely at the rate of £20 per month. This instalment judgment can be varied by a District Judge upon application at any time by either party.

In the circumstances, I shall ask my agent to request that judgment be entered at tomorrow's hearing.

Accordingly, no directions will be required in respect of the claim.

 

 

Are they correct in what they are saying? A

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Sorry, didn't finish but pressed enter.

 

Are they correct in what they are saying? Would a court view it that we have agreed to a TO even though we haven't signed it and have stated that we are unhappy with the terms?

 

Can we counter claim or ask for full disclosure, and if so, how?

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Is it another hearing tomorrow or the trial?

 

Andy


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Ok well they cant ask for judgment unless they have made application for Summary Judgment, mediation as not been concluded and you are not obliged to sign any consent if you are not happy with it.The DJ will issue further directions ( if you submit them) and the claim proceeds to trial.Did you make a settlement offer?


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Hi Andy, we offered £10 per month as part of our inc/exp and they accepted it. They then sent back a TO with 6 month review and for full amount + all charges which we are not happy with and have not signed.

 

I also believe that we have grounds for complaint and compensation and am wondering if we should ask for full disclosure or launch a counter-claim?

 

Any ideas?

 

D

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Would your counter claim be considerable and worth while, forget compensation this is a civil matter for debt not damages, are you ready and in possession of all the figures to proceed with a Part 20 CC ? What would be the debt versus your counterclaim differential?

 

Andy


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Hi Andy, I haven't really thought about our counterclaim. Are you saying that we could suggest a lower full and final settlement figure? Our main issue is that they haven't provided prescribed documentation and is my belief that the debt is unenforceable because of this. They have also registered a default while the matter is in dispute, not to mention closing our bank acccount with no notice, etc.

 

Would a judge rule against the debt being enforced because of these violations by RBS?

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I am assuming this is SCT so the figure claimed is less than 5K, not seeing the PoC I am unaware what they have plead or if you have submitted a defence or what stage of the process you are at.You offered a monthly payment figure not a full and final settlement figure.Have you requested disclosure by way of CPR?

What documentation are you in possession of?

 

Andy


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No this is a multi-track claim as the amount in question is £25k. Originally we received a claim against us from Northampton and we responded by saying we were waiting for an SAR and that depending upon any issues we found, we would mount a defence at that point. RBS didn't take the matter any further an it was set aside. Now 2 years later on, they have taken the matter up again. They are aware that they have failed to provide key information but are proceeding nonetheless (hopeful that we have forgotten!).

 

We haven't requested disclosure by CPR - how do we do this? The court is reconvening tomorrow - should I ask for it then or email the court today so that the judge has our request to hand?

 

It is easier to mention the documentation we don't have:

 

1. A valid credit agreement for the loan - we have an agreement, but the interest rate is incorrect. We also don't have any of the T&Cs documentation referred to in the credit agreement.

2. A TO/DN - some of this amount is a loan, some is an overdraft and some is unauthorised bank charges, but at no point has a TO/DN been sent for any of these parts.

3. A letter to notified us that our bank account is going to be closed down.

4. Any justification for transferring a loan payment from one account to another in full knowledge that there were insufficient funds is either account and that it would incur bank charges.

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No this is a multi-track claim as the amount in question is £25k.Fast Track Originally we received a claim against us from Northampton and we responded by saying we were waiting for an SAR and that depending upon any issues we found, we would mount a defence at that point. RBS didn't take the matter any further an it was set aside. Now 2 years later on, they have taken the matter up again. They are aware that they have failed to provide key information but are proceeding nonetheless (hopeful that we have forgotten!).

 

We haven't requested disclosure by CPR - how do we do this? The court is reconvening tomorrow - should I ask for it then or email the court today so that the judge has our request to hand? Too late for CPR now draft some Directions for tomorrow and email it over (may be a bit late for the DJ to consider in advance) also you need to copy the claimant and agree the directions but too late also so copy only.

 

It is easier to mention the documentation we don't have:

 

1. A valid credit agreement for the loan - we have an agreement,is the Claimant aware of this? but the interest rate is incorrect. We also don't have any of the T&Cs documentation referred to in the credit agreement. OK request same

2. A TO/DN - some of this amount is a loan, some is an overdraft and some is unauthorised bank charges, but at no point has a TO/DN been sent for any of these parts. ? whats a TO?

3. A letter to notified us that our bank account is going to be closed down. That is usually with the Notice served under sections 76(1) and 98(1)

4. Any justification for transferring a loan payment from one account to another in full knowledge that there were insufficient funds is either account and that it would incur bank charges.

To create an overdrawn position to create a fee.

Andy

 


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So this case is still classified as fast track?

Do the directions need to be agreed with the claimant? They are talking about moving to get a CCJ?

Claimant is aware of credit agreement issues and conveniently ignore it whenever I bring it up. Have just recalculated interest rate and it is less than 0.1% out - is this still valid, or should I concentrate on getting T&Cs?

Sorry, TO should be TN - terminatation notice.

3. A letter to notified us that our bank account is going to be closed down. That is usually with the Notice served under sections 76(1) and 98(1) - DEFINITELY NOT PROVIDED!

 

To create an overdrawn position and a fee

Presumably this is not in line with the principle of treating customers fairly?

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We could do with some help from you.

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