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

[AndyOrch]

If you lose and its a forthwith judgment you apply to vary it to monthly N245.So your house is safe.

 

If they are willing to accept £22k on a £34K you wont get much more off ...try £20K with no costs.

[dpac123]

Are there circumstances in which applying to vary doesn't work? Should I pitch a lower offer or just offer £20k?

[AndyOrch]

If the claimant refuse to accept the variance the court can enforce it or allow a charging order instead as security.

 

Cant advise dpac on the negotiation its your call...I personally dont think they will drop much lower.....but if you dont try you never know.

[dpac123]

Pre-trial listings deadline is 22nd so presumably this is a limited window? And we dont really stand a chance at trial?

[AndyOrch]

Not really pre trial listings is only part of the fast track procedure...mind any party who fails to return the listings on time is at risk of their claim /defence being struck out.

 

Cant comment on your second point dpac ...litigation is risky for both parties...dont assume you cant win.

[dpac123]

Had an interesting chat with FCA, FOS, Experian and the ICO today - here is the link: my credit report shows a default dated April 2013 with late payments in the preceding 6 months leading up to it. However, it shows up to date payments (green lights) for 40 months before that, even though no payments were made during this time and even though they took us to court during this time with an incorrect default notice. Incidentally the balance on the credit report shows the same outstanding debt for the last 5 years.

 

Here is the problem - either we made payments during that 40 month period, in which case the balance would have reduced month by month. Also there would have been no legal action in 2012 because according to the data passed to Experian there was no issue with our payments at that time.

 

Or, our payments were in arrears during that time in which case the information passed to Experian has been deliberately falsified because they appear to be up to date until a few months before the default notice is issued - it looks like the data has been amended to fit their purposes.

 

Either way, Experian are not pleased as it puts them in breach of the Data Protection Act because the data on the credit file is misleading.

 

The ICO are also not very happy and have suggested that we counter claim under section 13 of the Data Protection Act for damages caused by misleading information.

 

The FCA, along with the FOS, are also "very interested" in finding out more about the unfair treatment aspect of this, for example, sending in Ascent and Shoosmiths at the same time to pursue the same claim, targeting Mrs Dpac only, closing down our bank accounts without telling us, creating an overdraft for the purpose of creating fees and falsely reporting our personal data to fit their reissued default notice.

 

I'm not sure what to do with this - there are some clear issues here - maybe enough to stop RBS in their tracks, maybe not? Should we be looking to settle or does the threat of FCA/FOS snooping in their business and a potential counter claim encourage them to drop the case?

[BRIGADIER2JCS]

Had an interesting chat with FCA, FOS, Experian and the ICO today - here is the link: my credit report shows a default dated April 2013 with late payments in the preceding 6 months leading up to it. However, it shows up to date payments (green lights) for 40 months before that, even though no payments were made during this time and even though they took us to court during this time with an incorrect default notice. Incidentally the balance on the credit report shows the same outstanding debt for the last 5 years.

 

Here is the problem - either we made payments during that 40 month period, in which case the balance would have reduced month by month. Also there would have been no legal action in 2012 because according to the data passed to Experian there was no issue with our payments at that time.

 

Or, our payments were in arrears during that time in which case the information passed to Experian has been deliberately falsified because they appear to be up to date until a few months before the default notice is issued - it looks like the data has been amended to fit their purposes.

 

Either way, Experian are not pleased as it puts them in breach of the Data Protection Act because the data on the credit file is misleading.

 

The ICO are also not very happy and have suggested that we counter claim under section 13 of the Data Protection Act for damages caused by misleading information.

 

The FCA, along with the FOS, are also "very interested" in finding out more about the unfair treatment aspect of this, for example, sending in Ascent and Shoosmiths at the same time to pursue the same claim, targeting Mrs Dpac only, closing down our bank accounts without telling us, creating an overdraft for the purpose of creating fees and falsely reporting our personal data to fit their reissued default notice.

 

I'm not sure what to do with this - there are some clear issues here - maybe enough to stop RBS in their tracks, maybe not? Should we be looking to settle or does the threat of FCA/FOS snooping in their business and a potential counter claim encourage them to drop the case?

 

 

 

The advice you have been given is very good!

Certainly counter claim is a very good idea and may well stop the bank in its tracks.

[AndyOrch]

May be useful as leverage in your negotiations....bit late for a counter claim though.

[dpac123]

Other side are putting the pressure on to settle before the end of tomorrow as pre-trial checklist and fees are due in court by Monday. They are saying the window for negotiation will effectively close then. We don't feel that settling on £20k is acceptable given the blatant disregard for the law that has taken place and the underhanded ways in which they have falsely reported information in order to get a "correct" default notice.

 

 

Are you saying that no amendments to WS or counter-claims can be made once pre-trial checklists are in?

[AndyOrch]

Counter claims cant be made once a defence has been submitted without an application/fee...yes you can submit supplemental Witness Statements up until 3 days before the trial.

[dpac123]

So we could counter-claim if we pay a fee, presumably £500-£600 and amend WS statement if required?

[AndyOrch]

With the courts permission yes.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20

[dpac123]

Other side are putting the pressure on to settle before the end of tomorrow as pre-trial checklist and fees are due in court by Monday. They are saying the window for negotiation will effectively close then. We don't feel that settling on £20k is acceptable given the blatant disregard for the law that has taken place and the underhanded ways in which they have falsely reported information in order to get a "correct" default notice.

 

 

A trial date has been set for 23rd Oct even though we were told it would not be before 17th Nov. We got a call from claimant wanting to "resume" trying to reach a settlement. We made an offer of £10k and they are saying claimant probably won't accept less than £27k (the full amount but without £10k that have been accrued). Any suggestions on what to offer next and what they may be likely to drop to? They admitted that RBS are "investigating" the false reporting of data on my credit file but they don't think it would affect the claim in court (our argument is that credit files have been deliberately misreported in order to make them fit with a new "correct" default notice.

 

 

Any thoughts? Would prefer to settle but not at £27k.

[dpac123]

New trial date is 20th November so we have upped our offer to £20k payable via a Tomlin order at £20 per month. This has been rejected and we have received the following counter offer:

 

 

- £30k payable at £40 per month

- our consent to a judgement being entered

- our consent to a charging order against our property.

 

 

They are saying their costs now stand at £19k plus the original debt of £27k, hence the revised offer.

 

 

Given that their underhandedness has been the subject of our complaint and subsequent referral to the FOS, I was of the understanding that there may be grounds to halt this trial until the outstanding matters are resolved.

 

 

Any ideas much appreciated as this is getting a bit too close for comfort now!

[dpac123]

Just a thought - my mortgage is with Mortgage Express who are no longer lending and won't accept second charges? Does the mortgage lender have to give consent to a charging order?

[tedney]

Just a thought - my mortgage is with Mortgage Express who are no longer lending and won't accept second charges? Does the mortgage lender have to give consent to a charging order?

Hello dpac

 

AFAIK no, not in my case anyway, mortgage lender was not invloved in any way.

 

Is you mortgage yours alone, or is it with a spouse/partner? Is the debt yours alone? I have not looked through your thread again today, but if it is only your debt, I believe it may not be possible for them to get a charge onto your property unless your "other half" agrees.

Experts may be able to help you further.

There "offer" of getting a CCJ seems VERY unfair.

JMTPW

[dpac123]

Hello dpac

 

AFAIK no, not in my case anyway, mortgage lender was not invloved in any way.

 

Is you mortgage yours alone, or is it with a spouse/partner? Is the debt yours alone? I have not looked through your thread again today, but if it is only your debt, I believe it may not be possible for them to get a charge onto your property unless your "other half" agrees.

Experts may be able to help you further.

There "offer" of getting a CCJ seems VERY unfair.

JMTPW

 

Mortgage and loan are both in joint names so no joy there. We have complained to ICO and FOS so are hoping this may suspend proceedings?

[AndyOrch]

New trial date is 20th November so we have upped our offer to £20k payable via a Tomlin order at £20 per month. This has been rejected and we have received the following counter offer:

 

 

- £30k payable at £40 per month

- our consent to a judgement being entered

- our consent to a charging order against our property.

 

 

They are saying their costs now stand at £19k plus the original debt of £27k, hence the revised offer.

 

 

Given that their underhandedness has been the subject of our complaint and subsequent referral to the FOS, I was of the understanding that there may be grounds to halt this trial until the outstanding matters are resolved.

 

 

Any ideas much appreciated as this is getting a bit too close for comfort now!

 

Hi dpac

 

They were willing to accept 22k in September ...costs have not increased since then...if they state costs are 19k but are willing to accept 30k then costs are 3k on the original 27K.

 

I would try a further offer of 25K paid monthly at £35 pm..... no consent to judgment or charge otherwise you may as well proceed to trial.

 

Regards

 

Andy

[dpac123]

Thanks Andy, very helpful. So Eversheds are big-time liars coming up with a figure of £19k?

 

 

Is there any mileage in trying to get the case stayed/postponed/struck out on the basis that we have now submitted formal complaints to the ICO about the dodgy data on our credit files and to the FOS about their general conduct?

[AndyOrch]

You can make application to stay the claim pending the outcome of the above investigations.......you should request the claimants consent as that will make the application easier.Should you adopt this stance you need to get your skates on......as you state tis a little too close for comfort now.

 

Continue with mediation in the meantime.

[dpac123]

Great thanks, presumably N244? Trial is 20th so what is the latest date we can submit it and how much will it cost?

[AndyOrch]

If you can get the consent of the claimant...no hearing required £55......do it tomorrow.

[dpac123]

ok will do - and if claimant doesn't consent?

[AndyOrch]

Just submit it and serve them a copy...still without hearing and same fee.

 

Request an order pursuant to CPR 23.8 (with their agreement)

 

Applications which may be dealt with without a hearing

 

23.8 The court may deal with an application without a hearing if –

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application without a hearing, or

© the court does not consider that a hearing would be appropriate.

 

 

And CPR 26

 

Stay to allow for settlement of the case

 

26.4

 

(1) A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.

(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.

(3) The court may extend the stay until such date or for such specified period as it considers appropriate.

(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.

(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.

[AndyOrch]

PRACTICE DIRECTION 26 – CASE MANAGEMENT

 

Stay to allow for settlement of the case

 

Procedure for the parties to apply to extend the stay

3.1

(1)

(a) The court will generally accept a letter from any party or from the solicitor for any party as an application to extend the stay under rule 26.4.

(b) The letter should –

(i) confirm that the application is made with the agreement of all parties, and

(ii) explain the steps being taken and identify any mediator or expert assisting with the process.

(2)

(a) An order extending the stay must be made by a judge.

(b) The extension will generally be for no more than 4 weeks unless clear reasons are given to justify a longer time.

(3) More than one extension of the stay may be granted.

Position at the end of the stay if no settlement is reached

3.2

(1) At the end of the stay the file will be referred to a judge for his directions.

(2) He will consider whether to allocate the claim to a track and what other directions to give, or may require any party to give further information or fix an allocation hearing.

3.3 Any party may apply for a stay to be lifted.