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

[tedney]

has only recently defaulted on 31/03/2013. This defaulted in 2009, bank account was closed and incorrect default notice was issued.

If the account was closed, I don't think default notice can be issued on a closed account. Maybe an expert could help further?

Good Luck for today. t.

[AndyOrch]

Quite true tedney and as this is the second/third attempt at litigation it must be terminated.

 

Andy

[DonkeyB]

The key point here is the difference between when an account is defaulted with the CRAs, and when a default notice is issued. They are NOT the same thing.

 

RBS absolutely MUST issue a valid default notice in order to enforce any debt through the courts. It is a legal requirement. The issue of this bears no relation to the recording of a default with the credit reference agencies.

 

The recording of a default with the CRAs is an industry issue, and designed to reflect the way in which you run the account and whether you are a lending risk. Such a default should normally be registered within six months, at most, of the point at which the relationship broke down, often cited as the date of the first missed payment.

 

By recording a new default with the CRAs, RBS have either confused the issue, or have deliberately and vexatiously re-recorded a default long after the event, simply to cause you problems.

 

That’s the best way to point this out to a judge – and ask the oppo rep why this has happened.

[dpac123]

Just got back from the court and the judge decided as the original claim was struck out because RBS failed to respond, it can be opened again. Apparently as the strike out was due to non-compliance it didn't prove or disprove anything. So it looks like we are having to prepare another witness statement, etc.

 

 

Something I noticed is that our credit files show 39 up to date payments from 2009-2013 and suddenly in April 2013 there was a default. The balance of the amount owed hasn't changed, so I am wondering how we managed to be up to date with 39 payments and not clear any of the balance!? Also, why they would take us to court in 2012 if by their entries on our credit report, all was up to date at that time!

[AndyOrch]

I thought as much....strike out for none compliance of a direction can be overcome quite easily.Still prepare and onwards and upwards.

 

Andy

[dpac123]

We got the general form of judgement or order and RBS have served their substituted particulars of claim and we need to serve defences by 21st April. Can anybody remind me exactly what we need to do here? Are we just going through their POC point by point or submitting a defence against reissued default notice, dodgy original default notice, etc?

[AndyOrch]

If the court has asked for a particularised defence then thats what you submit dpac.

[dpac123]

Any examples of what this should look like? I don't want to confuse matters and submit witness statements, etc too early...

[AndyOrch]

A defence is a defence a Witness Statement is just that...have you not already submitted a defence when you received the claim first time around?

[dpac123]

Yes, but they have moved the goalposts a bit. So I submit a revised defence based on their revised POC?

[AndyOrch]

Yes as per my post #232.

[dpac123]

This is defence, could you have a look and tell me what you think? Also, does this go to the claimant only or the claimant and the court?

 

Particulars of claim

 

1. The Claimant claims against the First and Second Defendant repayment of sums due to it under account ending xxx ("the loan account") pursuant to terms of a Loan Agreement entered into between the Claimant and First and Second Defendant.

 

 

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

 

 

3. The First and Second Defendant have failed to pay the Claimant the sum of £yyy due under the loan account and the current account ("the Accounts") referred to above.

 

 

4. The loan account is regulated by the consumer crediticon Act 1974.

 

 

5. The Claimant has complied with Parts III and IV of Practice Direction - Pre Action Conduct of the Civil Procedures Rules.

 

 

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

 

 

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

 

 

8. The Claimant claims the sum of £yyy and interesticon owing on the balance due, pursuant to section 69 of the County Courts Act 1984 at a rate of 8% from 14 August 2013 until judgement of earlier payment, or alternatively at such rate as the court thinks fit.

 

 

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

 

 

AND the Claimant claims:

 

 

i. the sum of £yyy, representing the balance outstanding;

ii. Interest thereon as aforesaid; and

iii. Costs

 

 

 

 

Defence

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

2. We have received two default notices from the Claimant for account number xxx. The original default notice, received in 2009, is invalid for the following reasons:

• 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 dpac123 dated 26/03/2014 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 £yyy. 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 dated 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 two default notices for an overdraft on account number zzz. The first default notice gave until 25th May 2009 to make an alternative arrangement for repayment but did not include a date of service or a signature.

7. The second default notice was registered on Experian on 30/04/2013 although the account was closed by the claimant in 2009 (see point 9 below).

8. We have never received an explanation as to why funds were moved from account number yyy on 23rd February 2009 to account number xxx 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 zzz 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 5th February 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 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).

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]

How can you receive a default notice for an overdraft...you cant default but they can recall terminate?

[dpac123]

so I need to change it to termination notice? Other than that, is it ok?

[AndyOrch]

A creditor cannot enforce an overdraft facility without serving a Notice served under Sections 76(1) and 98(1) of the CCA1974...its similar to a default notice except its for the full balance and you dont actually default...you stop making deposits.

 

Ill have a further peruse this evening dpac when I can concentrate.

 

Regards

 

Andy

[dpac123]

Thanks Andy

[dpac123]

I need to post this today - any comments much appreciated! Also, do I send the defence/counterclaim form to the claimant with copy to the court or just to the claimant?

[AndyOrch]

You serve a copy to both dpac

[AndyOrch]

I would add A creditor cannot enforce an overdraft facility without serving a Notice served under Sections 76(1) and 98(1) of the CCA1974...try not to refer to default notices the above is its official name....Demand /Termination.

 

Regards

 

Andy

[dpac123]

Thanks Andy, will get it all sent off today.

[dpac123]

Hi guys, the next step is standard disclosure by list, which I assume is the list of all documents we will rely on together with copies of the documents. Can this be sent by email or does it have to be posted?

[AndyOrch]

Depends if the claimants accept electronic submissions dpac ..ring and ask.

 

Andy

[dpac123]

Sent over standard disclosure by list and as agreed with the other side, only the list was sent by post and email.

 

 

The order states: "Each party shall give standard disclosure by list to each other party by 4pm on 12th May 2014, with inspection by 4pm on 26th May 2014"

 

 

The other side have today requested documents from this list and are happy with electronic copies, but my question is whether I need to get these documents to the other side by 26th May, or does "with inspection by 4pm on 26th May 2014" mean that both sides have until 26th May to make the request for documents?

[AndyOrch]

You have until 26th to request/exchange documents form the standard disclosure.

[dpac123]

Hi guys, we have got to exchange witness statements by Monday 23rd at 4pm.

 

Our defence is below, could I get some help with drafting the witness statement? Many thanks,

 

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.

 

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:

 

• 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.

 

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).

 

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).

 

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.

Edited June 19, 2014 by citizenB
formatting to make reading easier.