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

[dpac123]

The ones posted by CB relate to claims that were issued last year - one by Shoosmiths, the other by Ascent. Both were discontinued and the whole thing was passed over to Eversheds, who first made contact in December 2013 and then have proceeded with the current claim.

[dpac123]

i.e. CBs attachments can be disregarded, the POC I posted today is the relevant one.

[AndyOrch]

Ok dpac gotcha...give me chance to run through their particulars and your defence and I will get back to you.

[citizenB]

Oops.. sorry dpac and andy.. those were the only ones I could see and just assumed..

[AndyOrch]

Oops.. sorry dpac and andy.. those were the only ones I could see and just assumed..

 

Not a problem CB you are forgiven:wink:

[citizenB]

Not a problem CB you are forgiven:wink:

 

Thank you, thank you..

[dpac123]

Thanks Andy, just something you said about DNs in relation to credit cards got me worried that there may be holes in my defence here.

[dpac123]

Ok dpac gotcha...give me chance to run through their particulars and your defence and I will get back to you.

 

 

Hi Andy, any thoughts?

[AndyOrch]

Hi Andy, sorry for the delay. Substituted POC below:

 

 

 

1.The Claimant claims against the first and second defendant repayment of sums due to it under account ending xxxxx (the loan account) pursuant to terms of a loan agreement entered into between the Claimant and the First and Second Defendant.

In addition, the Claimant against the First and Second Defendant repayment of sums due under current account ending xyzabc (the current account).

 

2.The First and Second Defendant have failed to pay the Claimant the sum of £11,111.11 due under the loan account and the current account (the accounts) referred to above.The loan account is regulated by the consumer credit Act 1974.

 

3.The Claimant has complied with parts III and IV of Practice Direction – Pre Action Conduct of the Civil Procedure Rules.

 

4.The Claimant has served upon the First and Second Defendant Default Notices under the Consumer Credit Act 1974.

The Claimant has requested payment but the First and Second Defendant have failed to pay the full sum demanded.

 

5.The Claimant claims the sum of £11,111.11 and interest owing on the balance due, pursuant to section 69 of the County Courts Act 1984 at a rate of 8% from 01/07/2013 until judgement of earlier payment, or alternatively at such a rate as the court thinks fit.

 

The claim does not include any issues under the Human Rights Act 1998.

 

AND the Claimant claims:

 

The sum of £11,111.11, representing the balance outstanding:

Interest thereon, as aforesaid; and

Costs

 

 

This is the defence statement:

 

 

D IN THE ABC county court CLAIM NO: DEF BETWEEN:- National Westminster Bank (Claimant) V MR DPAC (First defendant) MRS DPAC (Second defendant) DEFENCE TO SUBSTITUTED PARTICULARS OF CLAIM BY ORDER OF DISTRICT JUDGE DATED 3 MARCH 2014

 

 

1. We have received a copy of the credit agreement relating to account number 12345 together with terms and conditions referred to in the credit agreement.

LOAN AGREEMENT

 

2. We have received two default notices from the Claimant for account number 12345. The original default notice, received in 2009, is invalid for the following reasons: INCORRECT DEFAULT NOTICE RELATES TO A LOAN

 

• The Loan Account Number is incorrect.

 

• The amount of arrears stated is incorrect.

 

• The date in subsection 1 is 25th May 2009, which is less than 14 days after the date of service (11th May 2009 + 2 days allowed for postage) – see the Consumer Credit Act 1974 Section 88(2) which states: A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

3. The second default notice was received in 2013 although the account was closed by the claimant in 2009 (see point 9 below).

 

4. The Experian report for Mr DPAC dated 01/03/2014 shows the second default was registered on 31/03/2013 and that there have been 40 clear payments since the beginning of the loan. If this is correct, the claimant will have proof of these payments and the balance would be considerably lower than £17,221.72. If this is incorrect, the claimant has made significant errors in their reporting of our personal data to credit reference agencies and is in breach of the Data Protection Act 1998.

 

5. If the second default notice registered on Experian on 31/03/2013 is correct and payments were up to date during 2011 and 2012 as the Experian report shows, we would like to know why we were taken to court in 2012 and why the original, defective default notice was relied upon at that time.

 

6. We have received a recall termination notice for an overdraft on account number 23456 which gave until 25th May 2009 to make an alternative arrangement for repayment but did not include a date of service or a signature. RELATES TO OVERDRAFT

 

7. A default notice was registered on Experian on 30/04/2013 for account number 23456 although the account was effectively closed by the claimant in 2009 (see point 9 below). RELATES TO A LOAN

 

8. We have never received an explanation as to why funds were moved from account number 23456 on 21/03/2009 to account number 12345 in full knowledge that there were insufficient funds in this account and for the express purpose of creating an overdrawn position to create a fee. The Claimant will be put to strict proof that manual intervention was applied to the Current Account.

 

9. With reference to BCOB rule 5.1.1 and the example of unexplained peremptory closure of accounts, we can confirm that although account number 23456 remained open so that bank charges could accrue and so payments could still be made into the account, our access to the account was terminated on or around 02/03/2009. This termination was characterised by us not being able to access the account online or via an ATM. We will be relying on the terms and conditions within the facility letters to clarify that the termination of the overdraft complies with BCOB rule 5.1.1.

 

10. It is averred that if the Claimant cannot produce the facility letters stipulated under Conditions 2(b) and/or 2© of the Determination as set out above, they cannot therefore claim exemption from Sections 57 to 63 of the CCA 1974. Furthermore, the Claimant will be put to strict proof as to whether it has complied with Condition 2(a) above. In that respect, we refer the Court to the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005). OVERDRAFT

 

11. Notwithstanding the above we will contend that the overdraft balance was accrued penalty charges in its entirety levied by the Claimant.

 

12. In the circumstances we contend that until such time as the Claimant has established a legal entitlement to payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine that we have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

[AndyOrch]

Okay got it laid out as above ....now what are you wanting clarification with dpac?

 

Andy

[dpac123]

It mentions an incorrect DN and that the account has been terminated (through court action and because the bank account attached to the loan/overdraft has been closed without warning) - can DN be reissued in this context or is this defence valid against the POC?

[AndyOrch]

Default Notices are issued against Credit Cards and Personal Loans as per sec87 of the CCA1974

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87 A default note does not always terminate an agreement unless its expressed within the DN

 

Other points to argue in conjunction with DN / Termination which can invalidate it are :-

 

Sums in arrears and default sums

86B.Notice of sums in arrears under fixed-sum credit agreements etc.

86C.Notice of sums in arrears under running-account credit agreements

86D.Failure to give notice of sums in arrears

86E.Notice of default sums

86F.Interest on default sums

 

With regards to Overdrafts there is no Default Notice....therefore their particulars are little misleading.. its a Recall Termination otherwise known as Notice served under Sections 76(1) and 98(1) of the CCA1974

 

Again this must be laid out and pursuant to the CCA1974 and allow a time for you to propose intended payment arrangements...this can vary from 14 days to 28 subject to the contents expressed within the notice.If satisfactory proposals are agreed the facility will remain open albeit sometimes for deposits only and not payments or withdrawals...subject to how fast any balance can be supported.

 

To be brutally honest dpac your defence is not brilliant and does not attack their particulars as I have now laid them out above. There should be 5 points within your defence 5 responses to their pleadings.

 

Regards

 

Andy

[dpac123]

Hi Andy, bit confused, this was the defence you helped me with! Got a call from claimants solicitors looking to settle by way of Tomlin Order - is this a good idea and if so, what kind of options should I come in with as spare income is non-existent. If there is a real chance of defending this then I would let it go to court, but I'm quite confused because info I have been given in the last few days conflicts info from earlier in this thread. Please help!

[AndyOrch]

You had already submitted the defence before you started the thread dpac...I can assure you the above is not one of my drafts or even resembles one.I did assist you with your WS.

 

With regards to Tomlin Orders I have covered all early in this thread...I did advise you a acouple of weeks ago to ring them and see what their proposals are.

 

Regards

 

Andy

[dpac123]

Apologies, it was the witness statement you helped me with. I spoke to them as you advised a couple of days ago and they asked me what my proposal was. Are they worried because the witness statement is good or should I be entering into a Tomlin order?

[AndyOrch]

Depends on the terms (schedule) of the Tomlin Order...ask them to draft one for your consideration.Will it be a settlement or full claim amount lump sum payment or monthly...what about costs...all the things you should be asking.

[dpac123]

they tell me they need to see my proposal along with income and expenditure - should I provide? If I was looking to make a monthly payment until a proportion of the debt is repay, is there a typical starting point % e.g. 50%, 60%?

[AndyOrch]

Not until you know what they are prepared to accept...start at 40%......if they are not willing to offer any full and final figure but want the claimed figure ask what term would they be prepared to consider.

[dpac123]

They were talking about an amount per month based on my budget. I said I was concerned that they could increase the amounts without my consent but they said according to banking code they wouldn't do this. When they previously offered a Tomlin order in 2012, they suggested £10 per month which would take nearly 200 years to clear, but at the time I thought I had a strong case. Realistically, should I let this go to court or try to settle?

[AndyOrch]

If your defence is only reliant on default notice errors/arguments...I personally wouldn't take it to trial dpac...its not a strong enough argument.

Your WS has obviously had impact...hence the offer of mediation.....only you can decide what best for you and making sure that any Tomlin Order is amicably drafted to your satisfaction.

 

It would put an end to it once and for all and it will avoid judgment should you lose...if you can also add that that both parties bear their own costs...then it will also save you a few more £,s.

[dpac123]

What kind of costs would I be looking at? I would only be able to pay about £25 per month on a £25k debt - are they likely to go for that if that's what my budget reflects?

[AndyOrch]

Well you are in Fast Track...so they could be considerable .......5-8K wouldn't be a surprise.I really cant say what they would be prepared to accept but you would know relatively quickly once you make proposals.

[dpac123]

Would I have to pay £5-8k costs if we settle? If so, how does it get paid?

[AndyOrch]

No most Consents or Tomlin are void of costs...so its important that it states no order for costs or each party to bear its own costs.

 

If you continued to trial and lost costs are added to the judgment debt.

[dpac123]

Just been speaking to Eversheds (again) and they are telling me RBS may accept a "reduced" offer of £22k where the total debt is £27k + £7k costs so far. Pre-trial checklists are due in on Friday 22nd so this is apparently a "narrow window" to settle with a Tomlin order. I'm happy to try and settle because I could do without the stress of going to court and the possibility of a judgement - also wondering if a judge would order that payments are made in one go, which could mean us losing our house! Realistically some pointers on how much we should offer would help - Andy suggested starting at 40%, is this still worth trying?